G.Rajaguru v. The Management
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :: 28-04-2023
CORAM
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN AND THE HONOURABLE MRS.JUSTICE R.KALAIMATHI W.A.No.421 of 2023 G.Rajaguru ...
Appellant -vs1.The Management, rep. by its Managing Director, Metropolitan Transport Corporation (Chennai) Ltd., Anna Salai, Chennai - 600 002.
2.The Special Deputy Commissioner of Labour, D.M.S. Complex, IV Floor, Teynampet, Chennai- 600 006.
...
Respondents Appeal is filed under Clause 15 of the Letters Patent against the order, dated 25.11.2022, passed in W.P.No.16434 of 2017, on the file of this Court. For Appellant : Mrs.M.D.Leelavathi For Respondent 1 : Mr.R.Ramanlal, Addl.Advocate General, assisted by Mr.R.Balaji.
2/7 For Respondent 2 : Mrs.C.Sangamithirai, Spl.Govt.Pleader.
JUDGMENT
(By S.Vaidyanathan,J.) This appeal has been preferred by the employee, challenging the order of the learned single Judge, dated 25.11.2022, passed in W.P.No.16434 of 2017, setting aside the order of the authority under the Industrial Disputes Act,1947, rejecting the Approval Petition No.172 of 2014, by an order dated 20.02.2017.
2. The appellant employee joined the services of the respondent management on 07.05.1994 and was dismissed by an order, dated 01.08.2014. He remained absent from duty unauthorisedly for 555 days, for which, after a detailed inquiry, he was dismissed from service. The approval authority went into the question in detail and, in the light of the judgment of the Supreme Court in Lalla Ram v. D.C.M. Chemical Works Ltd., 1978 (3) SCC 1, came to the conclusion that the management had not produced any documents to come to the conclusion as to whether the inquiry was conducted properly or not and, in the absence of documents, the authority came to the conclusion that the inquiry was not conducted properly. With the rest of the issues, the authority granted the relief in favour of the employer and rejected the approval petition.
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3. Challenging the order of the authority, the management preferred the Writ Petition, whereby the order of the authority was set aside, holding that the matter needed to be remanded to the authority concerned for fresh adjudication.
4. In the light of the judgment of the Supreme Court in John D' Souza v. Karnataka State Road Transport Corporation, 2019 (18) SCC 47, to the effect that the matter needs to be remanded in case of a defective inquiry and, in the case on hand, the employer has not produced documents and that the inquiry has been conducted, we find that the order of the learned single Judge, interfering with the order of the authority, is perfectly justified. Once the matter is remanded, it is open for the authority to adjudicate the matter based on the documents produced by the parties and allow or reject the approval petition.
If the approval is granted, still, it is open for the employee to raise an industrial dispute under Section 2A of the Industrial Disputes Act,1947, as raising of an industrial dispute is not a bar after grant of approval and that the period, during which the matter was pending in the Court, has got to be excluded for the purpose of computation of three year limitation for raising an industrial dispute. In the process, the litigation will not come to an end.
4/7 shorten the life of the litigation, we convert the dismissal into one of compulsory retirement, which will take effect from the date of dismissal order passed by the employer and the employee would be entitled to all the benefits that will accrue to him in the light of the modified punishment. Though, normally, this Court would not interfere and modify the punishment, as the employer is a State within the meaning of Article 12 of the Constitution of India, and this Court has, in Indian Bank, represented by its General Manager, Madras v. K.S.Gurumoorthy and Another, 1990 (II) LLN 355, has entertained and modified the punishment and given finality to the litigation to bring down the life of the litigation, we are granting the relief.
5. Appellant is also present before this Court and has filed an affidavit, that is scanned below, stating that he is willing to give a quietus to the litigation by accepting the compulsory retirement and forgoing the entire back-wages. The affidavit reads as under :
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6. In view of the above development, the order of the learned single Judge is modified and the respondent management is directed to settle the terminal benefits, such as Provident Fund, Gratuity, Pension etc., taking into account the punishment of compulsory retirement, for the actual services rendered by the appellant employee between 07.05.1994 and 01.08.2014, within a period of four months from the date of receipt of a copy of this order.
7. Writ Appeal is disposed of accordingly. No costs. Consequently, the connected C.M.P.No.3888 of 2023 is closed.
Index : Yes/No (S.V.N.,J.) (R.K.M.,J.) Internet : Yes/No 28-04-2023 Speaking / Non-speaking Order dixit To 1.The Management, rep. by its Managing Director, Metropolitan Transport Corporation (Chennai) Ltd., Anna Salai, Chennai - 600 002.
2.The Special Deputy Commissioner of Labour, D.M.S. Complex, IV Floor, Teynampet, Chennai- 600 006.
7/7 S.VAIDYANATHAN,J.
AND R.KALAIMATHI,J.
dixit W.A.No.421 of 2023 28-04-2023