The Management Of v. Thiru.M.William Albert,

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 28.02.2022

CORAM

THE HON'BLE MR. JUSTICE P.D. AUDIKESAVALU and W.M.P. No. 28513 of 2017 The Management, Tamil Nadu State Transport Corporation (Kumbakonam) Limited, Kumbakonam Region No.27, New Railway Station Road Kumbakonam - 612 001.

... Petitioner -vs1. M.William Albert S/o.Michalsamy Mela Theru Michalpatti Post Thanjavur.

2. The Special Deputy Commissioner of Labour, D.M.S. Compound Chennai - 600 006.

... Respondents Prayer:- Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari, to call for the records of the Second Respondent made in A.P. No. 67/2013 dated 14.11.2016 and to quash the same as illegal and against the provisions of the Industrial Disputes Act, 1947. 1/7

For Petitioner :

Mr. D.Venkatachalam, Standing Counsel For Respondents :

Mr. P.Paramasivadoss(for R1) Mrs. C.Sangamithirai Special Government Pleader (for R2)

O R D E R

Heard Mr. D.Venkatachalam, Learned Standing Counsel appearing for the Petitioner, Mr. P.Paramasivadoss, Learned Counsel for the First Respondent and Mrs. C.Sangamithirai, Learned Special Government Pleader appearing for the Second Respondent and perused the materials placed on record, apart from the pleadings of the parties.

2.

The First Respondent, who was employed as conductor, had been terminated from service by the Petitioner by Order No. ThaAPoKa/T3/Tha.Pu./ 352/2010 dated 26.02.2013 on the charge of unauthorized absence. Since conciliation proceedings relating to an industrial dispute between the Petitioner and the Trade Union in which the First Respondent was a member was then pending before the Second Respondent, the Petitioner had made an application under Section 33(2)(b) of the Industrial Disputes Act, 1947 (hereinafter referred to as the 'Act' for short) for approval of termination, but it was rejected by order 2/7

dated 14.11.2016 in A.P. No. 67 of 2013 passed by the Second Respondent. Aggrieved thereby, the Petitioner has filed this Writ Petition challenging the same. 3.

It is evident from the impugned order that the Second Respondent has examined the application for approval made by the Petitioner with reference to the relevant aspects stipulated in the decision of the Hon'ble Supreme Court of India in Lalla Ram -vs- D.C.M. Chemical Works Ltd. [(1978) 3 SCC 1], which are as follows:- (i) whether a proper domestic enquiry in accordance with the relevant rules/Standing Orders and principles of natural justice has been held; (ii) whether a prima facie case for dismissal based on legal evidence adduced before the domestic tribunal is made out;

(iii) whether the employer had come to a bona fide conclusion that the employee was guilty and the dismissal did not amount to unfair labour practice and was not intended to victimise the employee;

(iv) whether the employer has paid or offered to pay wages for one month to the employee; and (v) whether the employer has simultaneously or within such reasonably short time as to form part of the same transaction applied to the authority before 3/7

which the main industrial dispute is pending for approval of the action taken by him.

4.

The Second Respondent came to the conclusion that the requirement in items (i), (ii), (iv) and (v) had been satisfied and in respect of the aspects in item (iii), the First Respondent had explained his inability to attend work on account of treatment for jaundice, and that he had conveyed his willingness to re-join duty. In such circumstances, relying on the decision of this Court in Tamil Nadu State Transport Corporation (Villupuram Division - 1) -vs- Joint Commissioner of Labour (Conciliation), Chennai [(2011) LLJ 644 (Mad)], it was held that the punishment of dismissal from service was too harsh and an act of victimization. 5.

It has been held by the Hon'ble Supreme Court of India in John D'Souza -vs- Karnataka State Transport Corporation (Order dated 16.10.2019 in Civil Appeal No. 8042 of 2019) that while holding enquiry under Section 33(2)(b) of the Act, neither the adjudicatory powers vested in the Labour Court under Section 10(i)(c) and (d) of the Act can be invoked nor can the proportionality of punishment be dwelled upon in the process of formation of prima facie opinion, as erroneously done in the instant case, for such a power can be exercised only 4/7

under Section 11-A of the Act by the Labour Court. In that view of the matter, the impugned order order dated 14.11.2016 in A.P. No. 67 of 2013 is set aside and it shall be treated that the Second Respondent has granted approval under Section 33(2)(b) of the Act to the Petitioner for the termination of the First Respondent. Though obvious, it is made clear that no view has been expressed by this Court on the correctness or otherwise of the merits of the rival contentions of the parties on the termination of the First Respondent from service and that the First Respondent is not precluded from working out his remedies to impeach the order of termination before the proper forum in the manner recognized by law (including resort to complaint under Section 33-A of the Act, if available), and that the period from the date of termination till the date on which certified copy of this order is made ready by the Registry shall be excluded for the purpose of computation of limitation in that regard.

In fine, the Writ Petition is ordered on the aforesaid terms. Consequently, the connected Miscellaneous Petition is closed. No costs. 28.02.2022 Maya Index: Yes/No Note: Issue order copy by 23.05.2022.

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To

1. The General Manager, Tamil Nadu State Transport Corporation (Kumbakonam) Limited, Kumbakonam Region No.27, New Railway Station Road Kumbakonam - 612 001.

2. The Special Deputy Commissioner of Labour, D.M.S. Compound Chennai - 600 006.

Copy to

1. The Registrar (Judicial), Madras High Court, Chennai - 600 104.

2. M.William Albert S/o.Michalsamy Mela Theru, Michalpatti Post Thanjavur.

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P.D. AUDIKESAVALU, J.

Maya Dated : 28.02.2022 7/7