Madras High Court
M.Sekar … vs The Managing Director on 23 September, 2024
Author: N.Anand Venkatesh
Bench: N.Anand Venkatesh
W.P.Nos.7360 & 11493 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.09.2024
CORAM :
THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH
Writ Petition Nos.7360 & 11493 of 2023
& WMP Nos.11375 & 11377 of 2023
W.P.No.7360 of 2023
M.Sekar …. Petitioner
-Vs-
The Managing Director
Tamil Nadu State Transport Corporation Ltd.,
(Villupuram)
No.3/137, Salamedu
Valuthureddy Post
Villupuram 605 602. …. Respondent
Prayer : Writ Petition under Article 226 of the Constitution of India praying for the
issuance of a Writ of Mandamus, to direct the respondent to release the terminal
benefits, gratuity and pension benefits to the petitioner with applicable interest from
the date of my retirement.
For Petitioner : Mr.A.Mohan
For Respondent : Mr.M.Aswin
Standing Counsel
1/8
https://www.mhc.tn.gov.in/judis
W.P.Nos.7360 & 11493 of 2023
W.P.No.11493 of 2023
The Management
Tamil Nadu State Transport Corporation
(Villupuram) Ltd
Cuddalore Region
Cuddalore-607 002. …. Petitioner
-Vs-
1.Thiru M.Sekar
2.The Special Deputy Commissioner of Labour
D.M.S. Compound
Chennai 600 006. …. Respondents
Prayer : Writ Petition under Article 226 of the Constitution of India praying for the
issuance of a Writ Certiorari to call for the records of the 2nd respondent made in
A.P.No.329/2011 dated 25.10.2018 and quash the same as illegal and agaisnt the
provisions of the Industrial Disputes Act, 1947.
For Petitioner : Mr.M.Aswin
Standing Counsel
For Respondents : Mr.A.Mohan
for R1
Mr.P.Balathandayutham
Special Government Pleader
for R2
2/8
https://www.mhc.tn.gov.in/judis
W.P.Nos.7360 & 11493 of 2023
COMMON ORDER
The issue involved in both these writ petitions are connected and hence, they
are taken up together, heard and disposed of through this common order.
2.WP.No.11493 of 2023 has been filed by the Transport Corporation challenging
the impugned proceedings of the Special Deputy Commissioner of Labour in
A.P.No.329 of 2011 dated 25.10.2018, refusing to grant approval of the termination of
the respondent under Section 33 (2) of the Industrial Disputes Act, 1947.
3.W.P.No.7360 of 2023, has been filed for the issue of a writ of mandamus
directing the respondent Corporation to release the terminal benefits, gratuity and
pension benefits to the petitioner with interest from the date of the retirement of the
petitioner.
3.For the sake of convenience, the parties will be identified in line with their
rank in WP.No.11493 of 2023.
4.Heard both.
5.The respondent was appointed as a Conductor in the year 1993 and he was
made permanent in the year 1994. Domestic enquiry was initiated by issuing a
https://www.mhc.tn.gov.in/judis
W.P.Nos.7360 & 11493 of 2023
charge memo on 22.05.2010, on the ground that the respondent had unauthorizedly
absent himself from service. The disciplinary proceedings ended in termination from
service by order dated 18.08.2011. The petitioner Corporation filed an approval
petition in A.P.No.329 of 2011 under Section 33(2) of the Industrial Disputes Act, 1947
before the Special Joint Commissioner of Labour, Chennai. The concerned authority
rejected the approval petition by an order dated 25.10.2018, on the ground that the
approval was sought for only on 08.09.2011 and whereas the respondent was
terminated from service with effect from 18.08.2011, consequently, the approval was
not sought for in line with proviso to Section 33(2)(b) of the I.D. Act, simultaneously.
Accordingly, the approval petition was dismissed. Aggrieved by the same, the
Corporation has filed the writ petition (WP.No.11493 of 2023). In the light of the
dismissal of the approval petition, the respondent has filed a separate writ petition
(W.P.No.7360 of 2023) for a direction to the Corporation to release the terminal
benefits.
6.There is no dispute with regard to the fact that the approval was not sought
for simultaneously along with the termination order passed against the respondent as
required under Section 33(2)(b) of the I.D. Act. Useful reference can be made to the
judgment of the Apex Court in Lalla Ram v. D.C.M.Chemical Works Ltd., and Another
reported in (1978) 3 SCC 1 and paragraph 12 in the said judgment is extracted
hereunder:
12. The position that emerges from the abovequoted decisions of this
https://www.mhc.tn.gov.in/judis
W.P.Nos.7360 & 11493 of 2023
Court may be stated thus: In proceedings under Section 33(2)(b) of the Act, the
jurisdiction of the Industrial Tribunal is confined to the enquiry as to (i) whether a
proper domestic enquiry in accordance with the relevant rules/Standing Orders
and principles of natural justice has been held; (ii) whether a prima facie case for
dismissal based on legal evidence adduced before the domestic tribunal is made
out; (iii) whether the employer had come to a bona fide conclusion that the
employee was guilty and the dismissal did not amount to unfair labour practice
and was not intended to victimise the employee regard being had to the position
settled by the decisions of this Court in Bengal Bhatdee Coal Co. v. Ram
Prabesh Singh [AIR 1964 SC 486 : (1964) 1 SCR 709 : (1963) 1 LLJ 291 : 24
FJR 406] , Titaghur Paper Mills Co. Ltd. v. Ram Naresh Kumar [(1961) 1 LLJ
511 : (1960-61) 19 FJR 15] , Hind Construction & Engineering Co. Ltd. v. Their
Workmen [AIR 1965 SC 917 : (1965) 2 SCR 85 : (1965) 1 LLJ 462 : 27 FJR 232]
, Workmen of Messrs Firestone Tyre & Rubber Company of India (P)
Ltd. v. Management [(1973) 1 SCC 813 : 1973 SCC (L&S) 341 : AIR 1973 SC
1227 : (1973) 3 SCR 587] and Eastern Electric & Trading Co. v. Baldev
Lal [(1975) 4 SCC 684 : 1975 SCC (L&S) 382 : 1975 Lab IC 1435] that though
generally speaking the award of punishment for misconduct under the Standing
Orders is a matter for the management to decide and the Tribunal is not required
to consider the propriety or adequacy of the punishment or whether it is
excessive or too severe yet an inference of mala fides may in certain cases be
drawn from the imposition of unduly harsh, severe, unconscionable or shockingly
disproportionate punishment; (iv) whether the employer has paid or offered to
pay wages for one month to the employee and (v) whether the employer has
simultaneously or within such reasonably short time as to form part of the same
transaction applied to the authority before which the main industrial dispute is
pending for approval of the action taken by him. If these conditions are satisfied,
the Industrial Tribunal would grant the approval which would relate back to the
date from which the employer had ordered the dismissal. If however, the
domestic enquiry suffers from any defect or infirmity, the labour authority will
have to find out on its own assessment of the evidence adduced before it
https://www.mhc.tn.gov.in/judis
W.P.Nos.7360 & 11493 of 2023
whether there was justification for dismissal and if it so finds it will grant approval
of the order of dismissal which would also relate back to the date when the order
was passed provided the employer had paid or offered to pay wages for one
month to the employee and the employer had within the time indicated above
applied to the authority before which the main industrial dispute is pending for
approval of the action taken by him.
7.It is quite clear from the above judgment that one of the mandate that has to
be satisfied is that the employer has to simultaneously or within such reasonably short
time as to form part of the same transaction apply to the authority before which the
main industrial dispute is pending for approval of the action taken by him. Only if this
mandate is satisfied, the industrial tribunal can grant the approval which would relate
back to the date from which the employer had ordered the dismissal.
8.In the case in hand, the dismissal order was passed on 18.08.2011 and
whereas the approval was sought for only on 08.9.2011. This clearly shows that there
is non-compliance with the mandate as spelt out by the Apex Court in the above
judgment.
9.In the light of the above discussion, this Court does not find any ground to
interfere with the dismissal of the approval petition filed by the petitioner Corporation
in A.P.No.329of 2011 dated 25.10.2018 and accordingly WP.No.11493 of 2023 stands
dismissed. No costs. Consequently, connected miscellaneous petition is closed.
https://www.mhc.tn.gov.in/judis
W.P.Nos.7360 & 11493 of 2023
10.In the light of the dismissal of the writ petition filed by the Transport
Corporation, the writ petition filed by the respondent in WP.No.7360 of 2023, has to
be allowed and there shall be a direction to the Trasnport Corporation to release the
terminal benefits including gratuity and pension benefits to the petitioner within a
period of six weeks from the date of receipt of copy of the order. If the amount is not
settled within a period of six weeks, the terminal benefits shall be paid with interest at
the rate of 6% p.a, from the date on which it became due and payable till the date of
actual settlement of the amount. Accordingly WP.No.7360 of 2023, stands allowed.
No costs. Consequently, connected miscellaneous petitions are closed.
23.09.2024
Index : Yes/No
NCS : Yes/No
KP
To
1.The Managing Director
Tamil Nadu State Transport Corporation Ltd.,
(Villupuram)
No.3/137, Salamedu
Valuthureddy Post
Villupuram 605 602.
2.The Special Deputy Commissioner of Labour
D.M.S. Compound
Chennai 600 006.
https://www.mhc.tn.gov.in/judis
W.P.Nos.7360 & 11493 of 2023
N.ANAND VENKATESH, J.
KP
Writ Petition Nos.7360 & 11493 of 2023
23.09.2024
https://www.mhc.tn.gov.in/judis
