THE HONOURABLE MR.JUSTICE D. BHARATHA CHAKRAVARTHY pay all the retiral benefits and arrears of pension within four months
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.02.2024
CORAM
THE HONOURABLE MR.JUSTICE D. BHARATHA CHAKRAVARTHY
W.P.Nos.17147 of 2012 & 32779 of 2015
and M.P.No.1 of 2015
W.P.No.17147 of 2012
G. Sudharsan … Petitioner
-Vs-
- The State of Tamil Nadu
Rep.by the Secretary to Government
Transport Department
Fort.St.George,
Chennai 600 009. - The General Manager
Tamil Nadu Transport Corporation (Salem)
Ramakrishna Road,
Salem. … Respondents
Prayer in W.P.No.17147 of 2012 :- Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus to call for the records relating to the proceedings of the 2nd respondent vide E4/15121/TNSTC (Salem)/2012, culminating in his order dated 18.06.2012, quash the same and direct the 2nd respondent to permit him to retire voluntarily as Helper with all terminal benefits within a stipulated time.
For Petitioner : Mr.R.Thirugnanam
for Mr.R.Annamalai
For Respondents : Mr.K.H.Ravikumar
Government Advocate for R1
Mr.R.Babu for R2
W.P.No.32779 of 2015
The Management
Tamil Nadu State Transport Corporation (Salem) Ltd.,
12, Ramakrishna Road
Salem 636 007
Rep.by its General Manager … Petitioner
-Vs-
- The Special Deputy Commissioner of Labour
DMS Compound, Anna Salai,
Chennai. - G.Sudharsan … Respondents
Prayer in W.P.No.32779 of 2015 :- Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari to call for the records of the 2nd respondent made in Approval Petition No.95 of 2013 dated 12.12.2014 and to quash the same as illegal and against the provisions of the Industrial Disputes Act, 1947 .
For Petitioner : Mr.R.Babu
For Respondents : Mr.K.H.Ravi Kumar
Government Advocate for R1
Mr.R.Thirugnanam
for Mr.R.Annamalai for R2
C O M M O N O R D E R
A.The petitions :
W.P.No.17147 of 2012 is filed by the workman aggrieved by the order dated 18.06.2012 in and by which his prayer to go on voluntary retirement was refused.
W.P.No.32779 of 2015 is filed by the Management aggrieved by the order of the Special Deputy Commissioner of Labour refusing to approve the punishment of dismissal from service on application under Section 33 (2) (b) of the Industrial Dispute Act, 1947.
1.1 Since both the writ petitions are interconnected, the same are taken up and disposed of by this common order.
B. The Factual Matrix:
- The workman, Mr.Sudharsan, was appointed as a driver on 17.03.1992 temporarily in the Tamilnadu Transport Corporation (Salem) Ltd (the Management). After that, his services were regularised. On 06.10.2006 upon reference, the Medical Board opined that he is unfit for driver duty on account of colour blindness. On 11.05.2007 a memo was issued to the petitioner calling for an explanation as to why he should not be discharged from service. On 17.05.2007 the workman submitted his explanation and requested to provide an alternative employment. Thereafter, by an order dated 21.05.2007, the workman was discharged from service. Aggrieved by the same, the workman filed W.P.No.29988 of 2007 and by an order dated 05.10.2007, the said writ petition was allowed with a direction to the Management to provide alternative employment. Pursuant thereto the workman was provided alternative employment with effect from 16.11.2007.
2.1 On 07.06.2012 the workman sought voluntary retirement on completion of 50 years of age claiming that he has put in 20 years of service. On 18.06.2012 the said application was rejected on the ground that the employee has to satisfy twin conditions namely, he has to cross 50 years of age and should also have 20 years of qualifying service. From the service period, leave on loss of pay has to be excluded as per the rules. After the exclusion of the period of leave on loss of pay, the workman had only 16 years and 7 months of service and therefore his request for voluntary retirement stood rejected.
2.2 Notwithstanding the same upon expiry of the notice period, the workman stopped reporting for duty. As such on 07.09.2012 a charge memorandum was issued calling for an explanation as to why appropriate punishment should not be imposed for action of unauthorised absence. Upon receipt of explanation, an enquiry officer was appointed on 15.10.2012. He submitted his report holding the charge as proved. On 22.10.2012 a second show cause notice was issued called for explanation on the report of the enquiry officer. The workman submitted his explanation on 03.11.2012. After considering the same on 25.02.2013 an order of dismissal from service was passed.
2.3 Since an Industrial Dispute was pending conciliation before the 1st respondent in Ref. No.13751 of 2007, before giving effect to the said order of dismissal, the Management applied under Section 33 (2) (b) of the Industrial Dispute Act, 1947, seeking approval of the punishment. However, after due enquiry, by an order dated 12.12.2014, the 1st respondent refused to approve the punishment.
2.4 Aggrieved by the refusal of permission to go on voluntary retirement the workman had filed the W.P.No.17147 of 2012. Aggrieved by the order of the Deputy Commissioner of Labour refusing to approve the order of dismissal the Management had filed W.P.No.32779 of 2015.
C. The Submissions:
- Mr R. Thirugnanam, the learned counsel appearing for the workman would submit that the Management itself had earlier chosen to discharge the petitioner, the physical condition of the petitioner need not be demonstrated before this Court. Owing to his physical condition, upon attaining the requisite age of 50 years, the petitioner applied to go on voluntary retirement by due compliance with the procedure. There was no ground for the Management to refuse the same. Even under the scheme, for special reasons, the Management could have considered the said leave on loss of pay period also. When the petitioner has put in a total of more than 20 years of service, the Management had only tried to victimise the petitioner by excluding the period of leave on loss of pay and rejecting the application of the petitioner. As such the action of the respondent in rejecting the application for voluntary retirement is not justified.
3.1 Alternatively he would submit that when an application for approval of the punishment is submitted under Section 33 (2) (b) of the Industrial Dispute Act, 1947, the Hon’ble Supreme Court of India in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd., Vs Ram Gopal Sharma 1 has delineated the powers of the Labour Commissioner. It was held within the powers of the Labour commissioner to see whether the punishment was an action of victimisation or not. The Labour Court has returned the finding that when an employee is suffering from illness without even referring him to the Medical Board as per the standing orders, initiation of disciplinary proceedings for not reporting to duty amounted to unfair labour practice and victimisation and therefore the award of the labour Court does not require any interference.
3.2 He would submit that the Management is opposing the petitioner in both ways. It is neither allowing the petitioner to go on voluntary retirement nor is willing to retain him in service but wants to uphold the order of dismissal from service. That itself would show that the Management is resorting to the practice of victimisation.
3.3 Per contra, Mr K.H. Ravikumar, the learned counsel appearing for the Management submitted that firstly when the petitioner applied for voluntary retirement the same was rightly rejected by the Management. The Government orders as amended periodically categorically state that the applicant should cross 50 years of age and also should have put in 20 years of qualifying service. The rule clearly and categorically mentions that the period of leave on loss of pay has to be excluded from the number of years of qualifying service. There is no dispute over the fact that the petitioner has availed leave on loss of pay. After deducting the same the petitioner has put in only 16 years and 7 months of service and therefore the application to go on voluntary retirement has rightly been rejected by the Management.
3.4 Without awaiting the decision of the Management or approaching even the higher forum, the petitioner chose to abandon service from the date of expiry of notice by himself. The petitioner cannot act as an appellate authority on his own and leave service. Only after giving enough rope to the petitioner to come back for duty, disciplinary proceedings were initiated. Even after the initiation of disciplinary proceedings, the petitioner did not report back for duty. Therefore, the disciplinary proceedings proceeded and the enquiry officer duly returned the finding that the petitioner was guilty of the charge.
3.5 After due second show cause notice, the punishment of dismissal from service was imposed. When an application for approval is filed under Section 33 (2) (b) of the Industrial Dispute Act, 1947, the Deputy Commissioner of Labour must see whether there is victimisation, that is, whether on account of the Industrial Dispute, the Management is unfairly initiating proceedings. When that is not the case, the Deputy Commissioner of Labour went beyond his jurisdiction in deciding whether one month’s pay was granted or not and other issues and therefore the order of the Deputy Commissioner of Labour is unsustainable.
D. Rejection of the application to go on Voluntary Retirement :
- As far as the question of permitting the workman to go on voluntary retirement, the scheme which stood as on the date of the application is the one which is as amended by the letter MS.No.243 dated 23.12.2004. As per the same the eligibility condition reads as follows:-
“completed 50 years of age and 20 years of qualifying service. The period of leave on Loss of Pay should be excluded while calculating the qualifying period of service.”
4.1 The Management has filed a counter affidavit in which the details of the total service as well as the leftover service after deducting the period of leave on loss of pay is given. As per the same, the workman has put in total service of 20 years 2 months and 12 days. During the same, he had been on leave on loss of pay for 3 years 7 months and 12 days. Accordingly, he had the qualifying service of only 16 years and 6 months. Therefore, he was not eligible as per the scheme in force and accordingly, the order of the Management dated 18.06.2012 refusing to allow the workman to go on voluntary retirement is in order.
E. The Dismissal from Service & the Non-Approval thereof:
- Once the order of refusal of the Management is in order, the action of the workman in stopping to report for work upon expiry of the notice period amounts to misconduct. The Management had every right to initiate the Disciplinary Proceedings. However, in the present case, the Management itself has thought it fit to discharge the employee as early as in the year 2007. Admittedly the physical condition of the workman has deteriorated. Upon refusal to permit him to go on voluntary retirement and calling him back to report for duty, the Management did not think it fit to refer him to the Medical Board.
5.1 The said fact has been considered by the 1st respondent in detail. On facts, it is concluded that when the workman is unwell and is unable to report for duty. When Standing Order No.24 B directs that such cases should be referred to the District Medical Officer for his opinion. Without referring the workman to the Medical Board, the Management insisted on attending duty. Consequently imposing a capital punishment from dismissal from service for not being able to report for duty. Hence it is held to be a case of victimisation and unfair labour practice. On the said ground the approval was not granted.
5.2 The Hon’ble Supreme Court of India has reiterated the scope of inquiry under Section 33(2)(b) in John D’ Souza -Vs- Karnataka State Transport Corporation2 and the relevant portion reads as under:
“In other words, the Authority concerned (Board, Labour Court or Tribunal, etc.) has to satisfy itself while considering the employer’s application that the `misconduct’ on the basis of which punitive action has been taken is not the matter sub-judice before it and that the action has been taken in accordance with the standing orders in force or as per terms of the contract.”
5.3 Hence, no exception whatsoever can be taken to the impugned Order.
F. The Backwages & Other Reliefs to the Workman:
- However, the fact remains that neither the workman reported for duty nor the Management referred him to the Medical Board even after the order of the Labour Commissioner and pending the writ petition as of 30.06.2020 the workman attained the age of superannuation. None of the benefits so far have been paid. Nor any suspension order was issued. No salary or allowances were also paid during the period from 2012 to 2020.
6.1 Under these circumstances, once the order of dismissal from service is held to be invalid the workman would be deemed to be in service till his date of superannuation ie., 30.06.2020. He will be entitled to all the retiral benefits and after that the regular pension. However, coming to the question of back wages, in this case, on the one hand, the workman is also contesting the punishment of dismissal from service and on the other hand he failed to report for work. On the contrary, when the Management filed the present writ petition in No.32779 of 2015 it prayed for a stay of the order refusing to approve the punishment. By an order dated 14.10.2015, this Court found that the prayer of stay would have no meaning and therefore granted an interim injunction by considering that the workman would press for his reinstatement and conferment of other consequential benefits. Therefore, this Court has to take into consideration the entire conspectus of facts, while considering the question of back wages, while the workman will be deemed to be in service till his superannuation.
6.2 I am of the view that since the workman voluntarily stopped reporting to work, back wages have to be denied to him on the principles of “no work no pay”.
G. The Result:
- In the result W.P.No.17147 of 2012 stands dismissed and W.P.No.32779 of 2015 is disposed of on the following terms:
(i) The prayer in the writ petition, to quash the order of the 1st respondent in Approval Petition No.95 of 2013 dated 12.12.2014 is negatived and the said order is upheld;
(ii) The workman will be deemed to have been in service and superannuated from service with effect from 30.06.2020 with all continuity of service;
(iii) However, the workman will not be entitled to any back wages from the date of his stopping to report for work that is with effect from 28.06.2012 up to the date of his superannuation;
(iv) The workman will be entitled to all the retiral benefits and pension;
(v) The respondents shall pay all the retiral benefits and arrears of pension within four months from the date of receipt of the copy of this order.
(vi) No costs. Consequently, the connected miscellaneous petition is also closed.
28.02.2024
Index : Yes/No
Speaking order/Non-speaking order
Neutral citation : Yes/No
dpq
To
- The General Manager
Tamil Nadu State Transport Corporation (Salem) Ltd.,
12, Ramakrishna Road
Salem 636 007 - The Special Deputy Commissioner of Labour
DMS Compound, Anna Salai,
Chennai. - The Secretary to Government
State of Tamil Nadu
Transport Department
Fort.St.George,
Chennai 600 009.
D. BHARATHA CHAKRAVARTHY, J.
dpq
W.P.Nos.17147 of 2012
& 32779 of 2015
28.02.2024
1 2002 (2) SCC 244
2 (2019) 14 SCALE 57)
