A.Sugumaran v. The Management Of Tn

IN THE HIGH COURT OF JUDICATURE OF MADRAS

DATED: 27.01.2017

CORAM:

THE HONOURABLE MR.JUSTICE S.MANIKUMAR and THE HONOURABLE MR.JUSTICE N.AUTHINATHAN W.A.No.472 of 2012 A.Sugumaran ... Appellant -vs1. The Management of Tamilnadu State Transport Corporation Limited, Udhagamandalam, The Nilgiris.

2. The Presiding Officer, Labour Court, Coimbatore - 18.

... Respondents Prayer: Writ Appeal has been filed under Clause 15 of the Letters Patent, against the order of the learned single Judge dated 12.11.2010 read with the modification order dated 08.11.2011 made in W.P.No.5260 of 2006.

Petition presented under Article 226 of the Constitution of India to issue a writ of certiorarified mandamus calling for the records from the 2nd respondent relating to the Award dated 30.06-2003 in I. D. No. 491 of 1999, quash the same and consequently direct the management to reinstate the petitioner in service with effect from 09.01.1999 with continuity of service back wages consequential and other attendant benefits For Appellant :

Mr.K.M.Ramesh for Ms.Anna Mathew For Respondent No.1 :

Mrs.Rita Chandrasekar for M/s.Jayesh B.Dolia For Respondent No.2 :

Court

J U D G M E N T

[Judgment of the Court was made by N.AUTHINATHAN, J.] The appellant was an employee of the Tamilnadu State Transport Corporation Limited / first respondent. He was working as clerk in the Coonoor Branch of the Transport Corporation. His duty was disbursement of wages to the employees of the Branch and to maintain accounts for the disbursement of wages. One Devanesan, a driver of the Corporation made a representation that his salary for the month of December 1996 was not paid. However, the signature purporting to be that of the driver was found in the acquittance register. But the worker denied having signed the acquittance register.

2.A preliminary enquiry was conducted. The said driver and the appellant were examined. The specimen signature of the said driver was collected for comparison by Handwriting Experts. The specimen signature and the disputed signature in the acquittance register were examined by the Government Handwriting Experts. They opinion that the person, who has given specimen signature, had signed in the acquittance register. Thereafter, another show cause notice was issued to the appellant. After considering his representations, a punishment of dismissal from service was imposed by an order dated 07.01.1999. 3.The petitioner preferred an appeal against the dismissal order and the same was also rejected. Thereafter, the appellant raised an Industrial Dispute in I.D.No.491 of 1999 before the Labour Court, Coimbatore praying to cancel the dismissal order dated 07.01.1999 and to reinstate him with continuity of service. The parties adduced evidence in support of their respective cases. The Labour Court confirmed the punishment of dismissal from service.

4.Aggrieved by the order dated 30.06.2003 of the Labour Court, the petitioner filed W.P.No.5260 of 2006. The learned single Judge passed the an order dated 12.11.2010. The operative portion of the order reads as follows: "Accordingly, the dismissal order is set aside and the same is reduced to one of denial of backwages. Taking note of the last drawn salary received by the petitioner at Rs.5493/-, as on the date of dismissal, although the petitioner would be entitled to 1/4th salary till the date of dismissal order, this Court directs that all that the petitioner is entitled is continuity of services only for the purpose of working out the retirement benefits alone right from 1999 to

this date and not for any other monetary benefits for that period."

5.Pending disposal of the Writ Petition, the petitioner attained the age of superannuation during April 2008. Thereafter, the petitioner filed M.P.No.812 of 2010 in W.P.No.5260 of 2006 to modify the said order dated 12.11.2010 and prayed for adequate compensation towards back-wages in lieu of reinstatement along with retiral benefits. However, the learned single Judge declined to modify the earlier order denying backwages.

6.Aggrieved by the order of the learned single Judge, the appellant preferred the present Writ Appeal. 7.The learned counsel appearing for the appellant would submit that the learned single Judge ought to have granted the relief of backwages with attendant benefits, since the charges of forgery and misappropriation had not been proved. 8.The learned counsel for the first respondent would submit that the learned single Judge having come to the conclusion that there was dereliction of duty to a degree committed by the appellant as per the conduct rules reduced the punishment of dismissal to one of denial of backwages and that therefore the appellant is not entitled to any relief in this appeal.

9.Heard the learned counsel appearing for the appellant and the learned counsel for the first respondent. 10.The learned single Judge set aside the order of dismissal on the ground that there is no legal evidence to prove the charges. The learned Judge has also held that the inference drawn by the Labour Court against the appellant was perverse. If so, in the ordinary course, the employee would be entitled to backwages with attendant benefits. It is true that the learned single Judge would observe that there is a dereliction of duty to a degree committed by the appellant as per the conduct rules and on that ground would appear to have denied the backwages. A close reading of the judgment of the learned single Judge would not reveal the nature of dereliction of duty. In the event of holding that there has been dereliction of duty, the requirement of procedure is that the appellant should have been afforded an opportunity to know the nature of the charge and defending himself.

11.In the instant case, the learned single Judge having come to the conclusion that the order of dismissal was perverse should have necessarily proceeded to order payment of backwages, as otherwise, the conclusion reached by the learned

single Judge in regard to the order of dismissal on the one hand and the conclusion reached in regard to the imposition of punishment of denying backwages would turn out to be contradictory, on the other. When a finding has been recorded that the order of dismissal was perverse, the necessary corollary would be order of payment of backwages. Once employee's dismissal is set aside, it will be deemed that he was in employment throughout. In the facts of the case, there are no grounds for denying backwages.

12.The respondent has come forward with a definite case that he continues to be unemployed. In BHUVNESH KUMAR DWIVEDI vs. HINDALCO INDUSTRIES LIMITED [(2014) 11 SCC 85], the Hon'ble Supreme Court has held that the burden of proof is on the employer to show that the workman is gainfully employed. The first respondent has not placed any material before this Court that the workman is gainfully employed. Therefore, we hold that the appellant is entitled to full backwages from the date of termination.

13.For the reasons stated supra, we hold that the order of the learned single Judge denying backwages with continuity of service is liable to be set aside and accordingly, it is set aside. The first respondent is directed to settle the backwages, within a period of two (2) months, from the date of receipt of a copy of this order. The Writ Appeal is allowed. No costs.

s/d- Assistant Registrar(CCC) //True Copy// Sub-Assistant Registrar To

1. The Management of Tamilnadu State Transport Corporation Limited, Udhagamandalam, The Nilgiris.

2. The Presiding Officer, Labour Court, Coimbatore - 18.

+1 CC to M/s. Anna Mathew, Advocate sr 5148 W.A.No.472 of 2012 SSK(CO) sp/13/2