The Management v. Thiru P.Velu,

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED:30.07.2021 CORAM :

THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN W.P.NO.31140 OF 2018 The Management, Tamil Nadu State Transport Corporation (Villupuram) Ltd., Kancheepuram Division, Ponnerikarai, Chennai-Bangalore National Highroad, Kancheepuram - 631 552.

... Petitioner vs.

1.

P.Velu 2.

The Special Deputy Commissioner of Labour, D.M.S. Compound, Chennai.

... Respondents 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 of the 2nd Respondent made in A.P.No.222 of 2014 dated 18.07.2017 and to quash the same as illegal and against the provisions of the Industrial Disputes Act, 1947. For Petitioner :

Mr.C.S.K.Sathish For 1st Respondent :

Mr.S.T.Varadarajulu

O R D E R

Petitioner/Transport Corporation has come up with this Writ Petition challenging the order dated 18.07.2017 passed by the 2nd Respondent/Authority in A.P.No.222 of 2014.

2.

The 2nd Respondent/Authority has rejected the Petitioner's Approval Petition on the ground that, a copy of the domestic enquiry proceedings has not been furnished to the 1st Respondent/employee. The Apex Court in a decision rendered in John D' Souza vs. Karnataka State Road Transport Corporation reported in (2019) 18 SCC 47 has held that, if the domestic enquiry is not conducted in a fair and proper manner, it is the

mandatory duty on the part of the Authority to give an opportunity to the Management to establish the charges in the enquiry.

3.

In the light of the judgment rendered in the case of John D' Souza (supra), this Court is of the view that, the employer must be given an opportunity and should have been asked to furnish documents. Hence, the order of the Authority in rejecting the Approval Petition on that score is not correct and this Court is inclined to remand the matter to the 2nd Respondent/Authority for fresh consideration. 4.

Accordingly, the order dated 18.07.2017 passed by the 2nd Respondent/Authority in A.P.No.222 of 2014, is set aside and the matter is remanded to the 2nd Respondent/Authority, who is expected to decide the matter within a period of six months. 5.

Once the Approval Petition seeking approval of the order of dismissal is rejected by the Authority, the employee is deemed to be in service, till the said order is reversed by this Court, as the order of the Authority in rejecting the Approval Petition is much more than an order of reinstatement awarded by the Labour Court/Tribunal.

6.

Though the 1st Respondent/employee has already filed a Petition claiming wages under Section 17-B of the Industrial Disputes Act, 1947, the same may not be applicable under Section 33(2)(b) of the Act, as mere wrong quoting of the provision will not take away the rights accrued to an employee. In view of the decision rendered by the Apex Court in the case of Rajeshwar Mahto vs. Alok Kumar Gupta reported in (2018) 4 SCC 341, the employer must pay wages from the date of dismissal of the employee till the order of the Authority is set aside and the original order of dismissal is restored to file. The wages drawn shall be paid before the commencement of the proceedings, as this Court permits the employer to produce all the documents to establish the charges.

7.

This Court makes it clear that, if the employer had not taken any plea, they need not be given an opportunity to establish the charges. In case, the domestic enquiry is held to be not fair and proper, the plea that, the employer must be given an opportunity to establish the charges should have been taken at the earliest stage and it cannot be entertained at a later stage.

8.

The 2nd Respondent/Authority shall ascertain during the proceedings as to whether the wages are paid to the employee from the date of dismissal till the date of this order of this Court.

The Writ Petition is allowed with the above directions. No costs. Consequently, connected W.M.P.No.36335 of 2018 and W.M.P.No.21806 of 2020 are closed.

Sd/- Assistant Registrar(CS VIII) //True Copy// Sub Assistant Registrar (aeb) To:

The Special Deputy Commissioner of Labour, D.M.S. Compound, Chennai.

+1cc to Mr.C.S.K.Sathish, Advocate, S.R.No.37632 +1cc to Mr.S.T.Varadarajulu, Advocate, S.R.No.37150 W.P.No.31140 of 2018 KV(CO) PM/21/09/2021