The General Manager, v. The Special Deputy

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 21.04.2021 C O R A M THE HONOURABLE MR.JUSTICE P.D.AUDIKESAVALU W.P. (MD) No.23559 of 2015 and M.P.(MD)No.1 of 2015 The General Manager, Tamil Nadu State Transport Corporation (Kumbakonam) Limited, Pudukkottai Region, 51/1, Pillai Thanneer Pandal, Thirumayam Road, Pudukottai-622 001.

... Petitioner Vs.

1.The Special Deputy Commissioner of Labour, Chennai-600 006.

2.K.Ravindran

...Respondents

PRAYER: Writ Petition filed under Article 226 of the constitution of India, to issue a writ of Certiorari, to call for the records relating to the impugned order passed by the first respondent herein dated 09.07.2014 in A.P.No.466 of 2012 and quash the same. For Petitioner : Mr. D.Sivaraman For Respondent 1 : Mr. Karuppasamy Government Advocate For Respondent 2 : No Appearance

ORDER

(through video conference) Heard Mr. D.Sivaraman, Learned Counsel for the Petitioner and Mr. M.Karuppasamy, Learned Government Advocate for the First Respondent and perused the materials placed on record, apart from the pleadings of the parties.

2.

Though the Second Respondent has been served, he has neither appeared in person nor through counsel in this Writ Petition. 1/4

3.

The Second Respondent, who was employed as driver, had been terminated from service by the Petitioner by an order No. jmnghf/g [J/rJ/o3/556V dated 10.07.2012 on the charge of unauthorized absence. Since conciliation proceedings relating to an industrial dispute between the Petitioner and the Trade Union in which the Second Respondent was a member, was then pending before the First Respondent, the Petitioner had made an application under Section 33 (2)(b) of the Industrial Dispute Act, 1947 (hereinafter referred as 'the Act' for short), for approval of termination, but it was rejected by order dated 09.07.2017 in A.P.No.466 of 2012 passed by the First Respondent. Aggrieved thereby, the Petitioner has filed this Writ Petition challenging the same.

4.

The only reason stated by the First Respondent in the impugned order for refusing to grant approval is that though the order of termination is dated as 10.07.2012, it had been received by the Petitioner only on 22.01.2013. It is not in dispute that all other conditions necessary for granting such approval has been satisfied in this case. It is submitted by the Learned Counsel for the Petitioner that it had been brought to the notice of the First Respondent before passing of the impugned order that the order No. jmnghf/g[J/rJ/o3/556V dated 10.07.2012 had been despatched by registered post on 10.07.

2012 itself and the Second Respondent had not collected the same from the post office despite intimation given which would amount to deemed service in terms of Section 27 of the General Clauses Act, 1897, providing that where a Central Act or Regulations authorized or requires any document to be served by post, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. It is further informed that the Second Respondent later came to the office of the Petitioner and received a copy of that order on 22.01.

2013 and that could not be taken as a guise to conclude that the Petitioner has not satisfied the requirement for granting approval for termination.

5.

There is a substantial force in the aforesaid contention raised by the Learned Counsel for the Petitioner. In this context, reference has to be made to the decision of the Hon'ble Supreme Court in State of Punjab -vs- Khemi Ram (AIR 1970 SC 214), where it has been held as follows:- "

It will be seen that in all the decisions cited before us it was the communication of the impugned order which was held to be essential and not its actual receipt by the officer concerned and such communication was held to be necessary because till the order is issued and actually sent out to the person concerned the authority 2/4

making such order would be in a position to change its mind and modify it if it thought fit. But once such an order is sent out, it goes out of the control of such an authority, and therefore, there would be no chance whatsoever of its changing its mind or modifying it. In our view, once an order is issued and it is sent out to the concerned Government servant, it must be held to have been communicated to him, no matter when he actually received it. We find it difficult to persuade ourselves to accept the view that it is only from the date of the actual receipt by him that the order becomes effective.

If that be the true meaning of communication, it would be possible for a Government servant to effectively thwart an order by avoiding receipt of it by one method or the other till after the date of his retirement even though such an order is passed and despatched to him before such date. An officer against whom action is sought to be taken, thus may go away from the address given by him for service of such orders, or may deliberately give a wrong address and thus prevent or delay its receipt and be able to defeat its service on him. Such a meaning of the word 'communication' ought not to be given unless the provision in question expressly so provides."

It could be inferred from the principles laid down in that decision that it would be suffice for the employer to show that he had promptly despatched the order and its actual receipt by the addressee was immaterial. In the present case, the Petitioner cannot be faulted for the failure of the Second Respondent to collect the order No. jmnghf/g[J/rJ/o3/556V dated 10.07.2012 after intimation from the post office had been given to him. 6.

In that view of the matter, the impugned order dated 09.07.2017 in A.P.No.466 of 2012 is set aside and it shall be treated that the First Respondent has been granted approval under Section 33(2)(b) of the Act to the Petitioner for the termination of the Second 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 Second Respondent from service and that the Second 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.

3/4

7.

In the result, the Writ Petition is ordered on the aforesaid terms. Consequently, the connected Miscellaneous Petition is closed. No costs.

Sd/- Assistant Registrar (P&A) // True Copy // / /2021 Sub Assistant Registrar(CS) Note: In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned. To The Special Deputy Commissioner of Labour, Chennai-600 006.

Copy to The General Manager, Tamil Nadu State Transport Corporation (Kumbakonam) Limited, Pudukkottai Region, 51/1, Pillai Thanneer Pandal, Thirumayam Road, Pudukottai-622 001.

+1 CC to M/s.D.SIVARAMAN, Advocate ( SR-17021[F] dated 22/04/2021 ) +1 CC to M/s.SPL GP ( SR-17142[F] dated 22/04/2021 ) W.P.(MD)No.23559 of 2015 21.04.2021 KB(18.06.2021) 4P 5C 4/4