The Management And v. A.Dasarathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.02.2024
CORAM
THE HON'BLE MR. JUSTICE S. VAIDYANATHAN AND THE HON'BLE MR.JUSTICE K. RAJASEKAR & C.M.P. No. 26279 of 2023 The Management of Tamil Nadu State Transport Corporation (Villupuram) Ltd., Kancheepuram Region, Kavaraipettai Post, Near Poonerikarai, Bengaluru National Highways Kancheepuram - 631 552.
..Appellant Vs.
1.
A. Dasarathan 2.
The Special Joint Commissioner of Labour, DMS Compound, Chennai - 600 018.
..Respondents 1\11
Prayer:
Writ Appeal as against the order dated 14.06.2023 made in W.P. No. 12898 of 2021.
For Appellant ::
Mr.T. Chandrasekaran For Respondents ::
Mr.M. Karthik for R1
J U D G M E N T
(Delivered by S. Vaidyanathan,J.) The writ appeal has been directed against the order dated 14.06.2023 passed in W.P. No. 12898 of 2021.
2.
The summation of facts which led to the filing of this writ appeal are as hereunder:
The 1st respondent/workman, who was working as a Driver in the appellant Transport Corporation, was issued with a charge memo for his unauthorized absence from 04.04.2012 to 17.06.2012 and pursuant to the disciplinary proceedings conducted, in which the charges framed against him were held proved, he was dismissed from service by order dated 16.12.20214. Thereafter, the appellant Transport Corporation had filed an 2\11
approval petition under Section 33(2)(b) of the Industrial Disputes Act, 1947, before the Special Deputy Commissioner of Labour, Chennai and by order dated 16.10.2018, the said petition came to be rejected, challenging which W.P. No. 12898 of 2021 came to be filed and by the order under challenge, the writ petition was also dismissed confirming the order passed by the 2nd respondent herein. Aggrieved by the said dismissal, the Transport Corporation is before this Court by way of this intra court appeal. 3.
According to the learned counsel for the appellant, the 2nd respondent ought not to have rejected the approval petition as the order of dismissal of the employee was passed after conducting proper domestic enquiry following due process of law. According to the learned counsel for the appellant, the unauthorised absence of the 1st respondent has caused great inconvenience to the general public and also loss to the appellant Transport Corporation. Moreover, the employee is an habitual unauthorised absentee and has been imposed with several punishments in the past for such misconduct and despite several opportunities having been given, he has not availed the same to mend his ways. Besides, according to the 3\11
appellant, the workman himself had admitted that he had absented himself unauthorisedly due to illness before the Enquiry Officer and the explanation furnished by him was also found to be unsatisfactory and not substantiated with documents. For all the above reasons and the charges having been held proved against the employee, the dismissal order was passed by the appellant Transport Corporation. Therefore, the learned counsel would submit that the rejection of the approval petition by the 2nd respondent and the confirmation of the same by the learned Single Judge is unsustainable. 4.
On the other hand, it is contended on behalf of the 1st respondent/workman that the writ petition filed by the Management challenging the rejection of the approval petition was rightly dismissed by the learned Single Judge after considering all the relevant materials on record and no interference is called for.
5.
Heard the learned counsel on either side.
6.
When the matter came up for hearing on 10.01.2024, this Court 4\11
passed the following order:
"The matter has been heard in detail.
2.
Learned counsel for the appellant Corporation produced G.O.Ms. No. 245 Finance (Allowances) Department dated 10.10.2014 and submitted that a perusal of the said Government Order would make it very clear that it is applicable only to Government employees. He would further submit that based on the representation made by the employees of the Transport Corporation, the benefit of the Government Order has been extended to the employee after the dismissal of the employee concerned. Hence, there was no occasion in which the benefit of Government Order was extended enabling the authority to hold that there was shortfall of payment of one month's wages. He would further contend that all the documents were produced and that the authority ought not to have rejected the approval petition.
3.
We are not in agreement with the contention that it is suffice to produce the findings of the Enquiry Officer and not enquiry proceedings. The enquiry proceedings ought to have been filed as it is the duty of the authority to verify the proceedings and come to the conclusion as to whether the findings are based on the said enquiry proceedings.
4.
Learned counsel for the Corporation submitted that, in order to give a quietus to the matter, if an order is passed granting compulsory retirement, the appellant Corporation would comply with the same.
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5.
Learned counsel for the workman submitted that the workman has got hardly seven more months of service and that the order passed by the authority was perfectly valid, which was rightly confirmed by the learned Single Judge.
6.
On a perusal of the Government Order, it is evident that the said Government Order was not applicable to the employee on the date of dismissal from service. On the ground of failure to furnish the enquiry proceedings, we are inclined to remand the matter for fresh consideration by the authority on production of enquiry proceeedings. At this stage, learned counsel for the employee would submit that he will ascertain from the employee as to whether he is willing to accept compulsory retirement with effect from 16.12.2014 in order to enable him to get pensionary and other terminal benefits and give a quietus to the issue on hand. 7.
Post on 18.01.2024."
7.
When the matter is taken up today, the learned counsel for the 1st respondent/workman, in the light of the submission made by him on the earlier occasion that he would ascertain whether the workman is willing to accept compulsory retirement with effect from 16.12.2014, would state that the 1st respondent/workman is ready to accept compulsory retirement and an affidavit dated 22.01.2024 has also been filed by the workman, the contents 6\11
of which are scanned and reproduced below:
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S. VAIDYANATHAN,J.
AND K. RAJASEKAR,J.
nv It is evident from paragraph No.7 of the affidavit dated 22.01.2024 that the workman has given consent for compulsory retirement. In view of the same, the writ appeal stands disposed of modifying the punishment of dismissal from service imposed to one of compulsory retirement with effect from 16.12.2014. The appellant Transport Corporation, as per its communication dated 11.01.2024, shall disburse pensionary and other terminal benefits to the employee and arrears, if any, upto 31.01.2024, within a period of six weeks from the date of receipt of a copy of this order. No costs. Connected C.M.P. is closed.
(S.V.N.J.) (K.R.S.J.) nv 02.02.2024 To The Special Joint Commissioner of Labour, DMS Compound, Chennai - 600 018.
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