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Madras High CourtWP/13433/2018disposed of

The Management v. The Presiding Officer

2021-07-26Honourable Mr Justice S. Vaidyanathan4 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 26.07.2021

CORAM:

THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN W.P.No.13433 of 2018 and WMP.No.15828 of 2018 The Management, Metropolitan Transport Corporation (Chennai) Ltd., Pallavan Illam, Anna Salai, Chennai- 600 002.

...Petitioner

-vs1. The Presiding Officer, III Additional Labour Court, City Civil Court Annexure Building, High Court Compound, Chennai- 600 104.

2. Mrs.B.Gowri

3. B.Maheswari

4. B.Vijaya Kumar (Respondents 2 to 4 are LR's of the deceased C.G.Bakthavachalam)

...Respondents

Prayer: 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 pertaining to the order passed in I.D.No.641 of 2005 dated 14.02.2018 on the file of the first respondent herein and quash the same.

For Petitioner :

Mr.M.Chidambaram For Respondents:

Mr.V.Ajay Khose (R2 to R4)

O R D E R

The petitioner has come forward with the present writ petition, challenging the order of the first respondent in I.D.No.641 of 2005 dated 14.02.2018, by which the First Respondent/Labour Court set aside the termination order of the deceased employee Mr.C.G.Bakthavatchalam dated 02.03.2002 and directed the Petitioner-Corporation to pay 25% of the back wages and all other eligible attendant benefits to the deceased employee based on his continuous service from the date of his

dismissal till the date of his superannuation and also his retirement benefits, to the legal representatives of the deceased employee.

2. The case of the petitioner is that deceased employee Mr.C.G.Bakthavatchalam worked as a Store Keeper in Tondiarpet Depot of the Petitioner-Corporation. Since,there was improper accounts and that he was unauthorisedly absent, a Charge Memo was issued, for which the deceased employee submitted his explanation. Not satisfied with the same, domestic enquiry was conducted. In the domestic enquiry, the employee pleaded guilty of the charges. It is further stated that based upon the enquiry report and past records of the employee, the second show cause notice was issued for which the deceased employee submitted his explanation and not being satisfied with the said explanation, he was terminated from service on 02.03.2002. It is the further case of the petitioner that after a lapse of three years and after the employee attained the age of superannuation, an Industrial Dispute was raised and during the pendency of the proceedings before the Labour court, the employee died on 12.02.2012.

3. The Labour Court, on considering oral and documentary evidence, by an order dated 14.02.2018 has set aside the termination order of the deceased employee Mr.C.G.Bakthavatchalam dated 02.03.2002 and granted the relief as stated supra. Challenging the same, the present Writ Petition has been filed.

4. Mr.Ajay Khose, the learned counsel for the legal heirs of the deceased employee submitted that the wife of the deceased employee also died on 25.08.2020, due to covid 19 and the Legal Heirs of the deceased employee are willing to give up backwages of 25% ,awarded by the Labour Court from the date of dismissal till the date of Superannuation.

5. Heard both sides. Perused the records.

6. Though the petitioner contended that the deceased employee has misappropriated a sum of Rs.1019/-, for which disciplinary proceedings were initiated and he was terminated from service, the deceased employee took a stand before the Labour Court that farce of an enquiry was conducted, without giving opportunity to the employee. Further, the PetitionerCorporation took a stand before the Labour Court that a sum of Rs.3228/- was handed over to the employee on 25.09.2001 for the purchase of cylinders and after purchasing the same, he failed to remit the balance amount of Rs.1019/- and also failed to report for duty on 26.09.2001 and 27.09.2001. For the said misconduct, he was placed under suspension and a charge memo was

issued calling for explanation and thereafter, detailed domestic enquiry was conducted, in which the deceased employee admitted that he committed misconduct and found guilty of the charges and only thereafter dismissal order was passed.

7. The Labour Court has held that though the PetitionerCorporation claimed that the deceased employee has admitted the charges, it is only a general admission which cannot be taken as a specific and valid one, so as to establish the two charges against the deceased workman. Further, the Labour Court held that merely relying on the admission of the deceased employee, the enquiry officer ought not to have come to the conclusion and submitted a report and therefore, the dismissal of the deceased workman is unjustifiable. Further, it was held that the deceased employee was dismissed on 12.03.2002 and died on 12.02.2012 at the age of 63 years.

Since the dismissal order is liable to be set aside, the deceased employee ought to be deemed to be in service during that period and the period from the date of dismissal till the date of superannuation has to be construed as the period of his service. Further, it was held that if the deceased workman would have been alive by the time, he would be entitled for pension and since he is not alive, his family members are entitled to claim the family pension.

8. A reading of the order would make it very clear that the deceased employee has admitted the guilt, but the Labour Court has held that the same is not suffice to prove his dishonest intention. However, as of now, the employee is no more and his wife also passed away.

9. Taking note of the submissions of the parties, this Court finds that the observation of the Labour Court that there was no dishonest intention cannot be brushed aside as it is a finding of fact. However, considering the submissions of the learned counsel for the respondents 2 to 4, that the legal heirs of the deceased employee are willing to give up backwages of 25% that has been awarded by the Labour Court from the date of dismissal till the date of Superannuation, the surviving legal heirs of the deceased employee/respondents 3 and 4 are entitled to the following reliefs.

(i) Pension amount payable to the deceased employee from the date of Superannuation till the date of his death. (ii) Gratuity with interest @ 10% per annum, if not paid already.

(iii) Family pension amount due to the wife of the deceased employee Mrs. Gowri, from the date of the deceased employee till her death.

The said benefits shall be extended by the PetitionerCorporation to the legal heirs of the deceased employee/respondents 3 and 4, within a period of three months from the date of receipt of a copy of this order. This Writ Petition is disposed of accordingly. No costs. Consequently, connected Miscellaneous Petition is closed. s/d- Assistant Registrar True Copy Sub-Assistant Registrar arr To The Presiding Officer, III Additional Labour Court, City Civil Court Annexure Building, High Court Compound, Chennai- 600 104.

+1 CC to Mr.M.Chidambaram, Advocate sr 35759 +1 CC to Mr.V.Ajay Khose, Advocate sr 35706.

W.P.No.13433 of 2018 PL(CO) SP(18/10/2021)