The Management, v. The Special Deputy

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 30.07.2021

CORAM

THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN W.P.NO.32770 OF 2015 AND M.P.NO.1 OF 2015 The Management, Tamil Nadu State Transport Corporation, (Kumbakonam) Ltd., 27, Pugaivandi Nillai New Salai, Kumbakonam - 612 001, Rep. by its General Manager.

... Petitioner -Vs1. The Special Deputy Commissioner of Labour DMS Compound, Chennai.

2. V.Sarnathan ... Respondents PRAYER:- Writ Petition filed under Article 226 of Constitution of India praying for the issuance of a Writ of Certiorari to call for the records of the order passed by the 1st respondent in A.P.No.495 of 2011 dated 27.06.2013 and to quash the same as illegal.

For Petitioner :

Mr.D.Venkatachalam For R2 :

Mr.V.Ajay Khose

O R D E R

This Writ Petition has been filed, challenging the order dated 27.06.2013 passed by the 1st respondent in A.P.No.495 of 2011, in and by which the order of dismissal passed by the Petitioner/Management was refused to be approved.

2. Heard the learned counsel on either side and perused the material documents available on record.

3. The Authority rejected the Approval Petition filed by the Petitioner/Management in A.P.No.495 of 2011 on the ground that the domestic enquiry was not conducted properly and was not in accordance with the principles of natural justice and that, there is victimization.

4. Once the domestic enquiry has been held to be not fair and proper, it is open to the Employer to adduce fresh evidence in the light of the judgment of the Apex Court in the case of Workmen of Fire Stone Tyre Rubber Company v. Management, reported in 1973 (1) LLJ 78 (equivalent (1973) 1 SCC 813, provided there is a plea taken by the Management in the counter affidavit that they must be given an opportunity to let in evidence. The Apex Court in a recent judgment in the case of John D'Souza vs. Karnataka State Road Transport Corporation, reported in (2019) 18 SCC 47, which has been followed by this Court in the case of Management, Tamil Nadu State Transport Corporation (Villupuram) Limited, Kancheepuram Region, Kancheepuram vs. M.

Chitti Babu (deceased) and others, reported in 2021-I-LLJ-17 (Mad), reiterated that once the domestic enquiry is vitiated, the employer must be given an opportunity to establish the charges. In Shankar Chakravarti vs. Britannia Biscuit Co. Ltd. and others, reported in (1979) 3 SCC 371, the Apex Court held that there is no need for the Labour Court or Tribunal to remind the Management as to what they should do.

5. It is brought to the notice of this Court that the employee in this case has already attained the age of superannuation. That apart, even assuming that the finding of victimisation is going to be answered in favour of the employee, as the employee did not seek any evidence to establish the charges, the decision of the Authority in rejecting the Approval Petition is perfectly valid. Hence, I find that there is no reason whatsoever to interfere with the order of the Authority concerned.

6. In the result, this Writ petition is dismissed. Since the order passed by the Authority in rejecting the Approval Petition has been upheld, the Employee/2nd Respondent is deemed to be in service in the light of the judgment rendered by this Court in the case of Tata Iron and Steel Company Ltd., vs. G.Ramakrishnan Ayyar, reported in 1950 LLJ 1043 and (* ".....he is entitled to wages from the date of dismissal from service. The Petitioner/ Management/Employer is directed to settle the entire back wages & terminal benefits, due to the Employee, within a period of four (4) months from the date of receipt of a copy of this order, as the dismissal order has become non-est in the eye of

law, once the Approval Petition is rejected...") No costs. Consequently connected miscellaneous petition is also closed. Sd/- Assistant Registrar(CS V) 23/11/2021 * Corrected as per order this Court Dated 17/12/2021 made in W.P.No.32770/2015 Sd/- Assistant Registrar(CS V) 03/01/2022 //True Copy// Sub Assistant Registrar dpq To:

The Special Deputy To be Substituted the order Commissioner of Labour already despatched DMS Compound, on 16/12/2021 Chennai.

+1cc to Mr.D.Venkatachalam, Advocate, S.R.No.37105 +1cc to Mr.V.Ajay Khose, Advocate, S.R.No.37139 * +1cc to the Govertment Pleader S.R.No.68706 W.P.NO.32770 OF 2015 EV(CO) PBS/29/11/2021 CT/03/01/2022