S.Thandavan(Staff No.92dr3007) (Died) v. The Managing Director,
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 27.04.2023
CORAM
THE HONOURABLE MRS.JUSTICE S.SRIMATHY and W.M.P.(MD).Nos.5215, 5216, 5217, 5218, 5219 and 5220 of 2019 W.P.(MD).No.6527 of 2019:
S.Thandavan (Died) 1.Muruganantham 2.Deepadevi 3.Naguchamy 4.Vimala Devi 5.Silamban ... Petitioners (P-1 to P-5 are substituted vide Court Order dated 27.04.2023 in W.M.P.(MD).No.6652 of 2023 in W.P.(MD).No.6257 of 2019). Vs.
1.The Managing Director, Tamil Nadu State Transport Corporation (Kumbakonam) Limited, TNSTC Head Office, No.27, Railway Station New Road, Kumbakonam - 612 001.
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2.The General Manager, Tamil Nadu State Transport Corporation (Kumbakonam) Limited, Division - III, Karaikudi Region, Maruthupathi Managiri, Karaikudi - 630 307.
... Respondents Prayer : Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorarified Mandamus, to call for the records relating to the impugned order passed by the second respondent in TNSTC/O.Na.Pi/O2/14 dated 02.02.2019 and quash the same as illegal and consequently directing the respondents to reinstate the petitioner into service with all monetary, attendant benefits and other service benefits.
W.P.(MD).No.6528 of 2019:
P.Sethumani ... Petitioner Vs.
1.The Managing Director, Tamil Nadu State Transport Corporation (Kumbakonam) Limited, TNSTC Head Office, No.27, Railway Station New Road, Kumbakonam - 612 001.
2.The General Manager, Tamil Nadu State Transport Corporation (Kumbakonam) Limited, Division - III, Karaikudi Region, Maruthupathi Managiri, Karaikudi - 630 307.
... Respondents 2/17
Prayer : Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorarified Mandamus, to call for the records relating to the impugned order passed by the second respondent in TNSTC/O.Na.Pi/O4/81 dated 02.02.2019 and quash the same as illegal and consequently directing the respondents to reinstate the petitioner into service with all monetary, attendant benefits and other service benefits.
W.P.(MD).No.6529 of 2019:
K.Kannadhasan ... Petitioner Vs.
1.The Managing Director, Tamil Nadu State Transport Corporation (Kumbakonam) Limited, TNSTC Head Office, No.27, Railway Station New Road, Kumbakonam - 612 001.
2.The General Manager, Tamil Nadu State Transport Corporation (Kumbakonam) Limited, Division - III, Karaikudi Region, Maruthupathi Managiri, Karaikudi - 630 307.
... Respondents Prayer : Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorarified Mandamus, to call for the records relating to the impugned order passed by the second respondent in TNSTC/O.Na.Pi/O4/64 dated 02.02.2019 and quash the same as illegal and consequently directing the respondents to reinstate 3/17
the petitioner into service with all monetary, attendant benefits and other service benefits.
(In all Writ Petitions):
For Petitioner : Mr.SP.Vijay Nivas For Respondents : Mr.P.Balasubramanian COMMON ORDER The Writ Petitions are filed to quash the order dated 02.02.2019 with a consequential direction to reinstate the petitioners into service with all monetary, attendant benefits and other service benefits. Through the impugned order, the petitioners were dismissed from service.
2. The issue raised in all the Writ Petitions are one and the same. Hence, a common order is passed.
3. The petitioners were employed as a Driver in the respondent corporation in the year 1992, 1997 respectively. After verifying the records, the respondent corporation had appointed the petitioners, namely S.Thandavan as Trainee Driver on 01.08.1992, P.Sethumani on 4/17
17.03.1997 and K.Kannadhasan on 16.09.1995. While the petitioners were in service, a charge memo dated 25.05.2005 and 22.08.2008 was issued by the second respondent stating that the school certificate produced by the petitioners and 26 others at the time of joining duty are bogus and an enquiry notice dated 17.10.2005 was issued. During the enquiry, two communications of the Assistant Elementary Educational Officer was relied upon by the second respondent, wherein it is stated out of 43 certificates 27 certificates are bogus. The contention of the petitioners is that at the time of appointment, they have produced the genuine certificate which was issued by the District Educational Officer, but the respondents claimed that to be bogus.
The contention of the petitioners is that the District Educational Officer and the Assistant Elementary Educational Officer, Ramanathapuram vide report dated 19.02.2005 informed that the petitioners School certificate was bogus one, but there ignored their earlier endorsement to the effect that the petitioner's School certificate is genuine. The second respondent issued a notice calling for the petitioners to submitted their objections. However, the report of the District Educational Officer and Assistant Elementary Educational Officer was not furnished to the petitioners. Without considering the same, the second show cause notice dated 25.08.
22.08.2008 was issued by the second respondent, against which the petitioner had preferred an appeal to the first respondent seeking to produce the documents. In such circumstances, the second respondent had terminated the petitioners from the service that too after lapse of 7 years from the 2nd show cause notice dated 25.08.2009, 16.07.2005 and 22.08.2008 respectively. The second respondent vide proceedings dated 19.10.2015 had terminated the petitioners from service. As against the order of termination, the petitioners had filed Writ Petitions in W.P.(MD)No.20167 and 20115 of 2015, wherein this Court has set aside the termination order and directed the respondents to conduct fresh enquiry. The petitioner preferred a Writ Appeal in W.A.(MD)No.
1327 of 2017 and the same was disposed of with a direction to the respondents to complete the enquiry within a period of six weeks. Among 26 persons, one employee namely Thangaraj filed a Writ Petition in W.P.(MD). No.10695 of 2008 challenging the order of termination and the same was allowed vide order dated 19.12.2009, whereby he was reinstated into service. However, the respondents have preferred an appeal in W.A.(MD)No.600 of 2010 and the Management appeal was dismissed on 20.04.2011, against which the Management had preferred SLP before the Hon'ble Supreme Court in S.L.P.No.
also dismissed on 07.09.2012. By citing the same, similarly placed persons who were aggrieved by the order of the second respondent namely, Muniasamy and Ashok Kumar had filed Writ Petitions in W.P. (MD)Nos. 7503 and 10697 of 2008 and the same were allowed vide order dated 26.02.2003. As against the same, the Management had preferred writ appeals in W.A.(MD)Nos.412 and 363 of 2014 respectively and the same were also dismissed on 16.03.2014. However, by ignoring all these facts, the respondent Management has passed an impugned order of termination by terminating the petitioners from service. Therefore, the petitioners are seeking the same relief that was granted to other similarly placed persons who were also terminated from service, but subsequently reinstated into service. Aggrieved over the same, the petitioners are before this Court.
4. Pending Writ Petition, the writ petitioner in W.P.(MD)No.6527 of 2019 died. The legal heirs of the deceased petitioner had filed Substitute Petition in W.M.P.(MD)No.6652 of 2023 and the same is allowed.
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5. The respondents submitted that it is the second round of litigation. Earlier, when the petitioners filed Writ Petitions, this Court has directed the employees to approach the Labour Court, since it is the appropriate forum to get remedy, against which the employees have preferred appeal, but this Court has directed the respondents to conduct a denova enquiry and set aside the order of dismissal. The respondents have subsequently confirmed the dismissal through the impugned order. Therefore, the stand of the respondents is that even against this order, the petitioner should prefer a petition before the Labour Court and this Court cannot entertain these Writ Petitions.
On perusing the documents and evidence filed by the petitioners it is seen that the petitioners were appointed on 1992 and 1997 respectively and have served until their dismissal that is on 19.10.2015. Moreover, the writ petitioner in W.P. (MD)No.6527 of 2019 died on 06.11.2022. At this stage, the legal heirs of the deceased employee cannot be directed to file a petition before the Labour Court to seek remedy. In order to grant over all relief, this Court is entertaining this Writ Petition.
6. On merits, the learned counsel appearing for the petitioners submitted that the District Educational Officer who appeared before the 8/17
enquiry officer has submitted that on further verification, the name and the number allotted to the writ petitioners matches and the petitioners had studied 8th standard in the concerned School only which is marked as Ex.No.11. But the enquiry officer is disbelieving the statement submitted by the District Educational Officer and the enquiry officer has held that the subsequent statement should be considered as hostile witnesses. This Court is not able to understand how it has become hostile. When the District Educational Officer has submitted on further verification the certificate is genuine, since the name and the number matches with the petitioners, the enquiry cannot term this as hostile witness.
Moreover, the enquiry officer has relied on the preliminary enquiry report and has come to the conclusion that the petitioners have not studied 8th standard. It is settled principles that based on preliminary enquiry report the allegation cannot be conclude as proved and punishment cannot be imposed based on the preliminary enquiry report. If this plea is allowed then there need not be any full-fledged enquiry, opportunity is not necessary, straight away the employees can be punished.
7. The relevant portion of the findings of the enquiry report in W.P. (MD).No.6257 of 2019 is extracted hereunder:
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8. As far as the petitioner in W.P.(MD).No.6258 of 2019 is concerned it is stated in the enquiry report that the school where the petitioner had studied was closed in the year 1998 and the records were handed over to the Municipal School, the records was not maintained properly by the school, hence the genuineness could not be ascertained. The witness is not stating that the certificate as bogus, but could not ascertained because the records were not maintained properly. Hence this Court is of the considered opinion that the benefit of doubt ought to be granted to the petitioner. The relevant portion of the findings of the enquiry report in W.P.(MD).No.6258 of 2019 is extracted hereunder: 11/17
9. As far as the petitioner in W.P.(MD).No.6259 of 2019 is concerned it is stated in the enquiry report that the records are decayed and the records was not maintained properly by the school, hence the genuineness could not be ascertained. The witness is not stating that the certificate as bogus, but could not ascertained because the records are 12/17
decayed and the records were not maintained properly. Hence this Court is of the considered opinion that the benefit of doubt ought to be granted to the petitioner. The relevant portion of the findings of the enquiry report in W.P.(MD).No.6259 of 2019 is extracted hereunder: 13/17
10. Therefore, the reasoning stated by the enquiry officer is erroneous. The enquiry officer may be disbelieving the evidence of the District Educational Officer, but he cannot term this as a hostile witness. The records were decayed and not maintained properly and hence the benefit of doubt ought to be granted to the petitioners.
11. Therefore, this Court is of the considered opinion that the subsequent deposition of the educational authority where the authority has confirmed the petitioners were studied in 8th standard ought to be accepted. The report of the DEO ought to be accepted as far as other petitioners where the records are not maintained properly and benefit of doubt ought to be granted.
12. Moreover, the petitioner in W.P.(MD)No.6527 of 2019, namely, S.Thandavan, died on 06.11.2022. Therefore, this Court is of the considered opinion that in W.P.(MD)No.6257 of 2019, the date of dismissal that is on 02.02.2019 shall be converted as compulsory retirement. The service rendered by the deceased petitioner is from 07.09.1991 to 02.02.2019 and the respondents shall calculate the benefits for the above said period and disburse the same to the legal heirs of the 14/17
deceased petitioner.
13. In W.P.(MD)6528 of 2019, the benefit of doubt is granted to the petitioner. Therefore, the respondents are directed to calculate the benefits that is applicable for the period from 1997 to 02.02.2019 and disburse the same to the petitioner.
14. In W.P.(MD)No.6529 of 2019, the benefit of doubt is granted to the petitioner. Therefore, the respondents are directed to calculate the benefits that is applicable for the period from 1997 to 02.02.2019 and disburse the same to the petitioner.
15. With the above directions and modification, the Writ Petitions are disposed of. There shall be no order as to costs. Consequently, connected miscellaneous petitions are closed. 27.04.2023 NCC : Yes/No Index : Yes / No Internet : Yes/ No Nsr 15/17
To 1.The Managing Director, Tamil Nadu State Transport Corporation (Kumbakonam) Limited, TNSTC Head Office, No.27, Railway Station New Road, Kumbakonam - 612 001.
2.The General Manager, Tamil Nadu State Transport Corporation (Kumbakonam) Limited, Division - III, Karaikudi Region, Maruthupathi Managiri, Karaikudi - 630 307.
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S.SRIMATHY, J.
Nsr 27.04.2023 17/17