THE HONOURABLE MR v. Thiruvalluvar Transport Corporation Ltd

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 27.08.2007CORAM:THE HONOURABLE MR.JUSTICE F.M.IBRAHIM KALIFULLAW.P.Nos.8457 and 11907 of 19961. Abdul Sathar (deceased)2. Dowlath Bibi (wife)3. Mohammed Yusuf (son)4. Mohammed Illiath (son) .. Petitioners in both WPs (rep. by mother and natural guardian Dowlath Bibi)Petitioners 2 to 4 are substituted as L.Rs of the deceasedfirst petitioner as per order of Court dated 10.11.1999 inWPMP Nos.16940 and 16941 of 1998.Versus1. Thiruvalluvar Transport Corporation Ltd., Rep. by its Managing Director, Pallavan Salai, Madras 2.2. General Manager, Thiruvalluvar Transport Corporation Ltd., Pallavan Salai, Madras 2. .. Respondents in both WPs PRAYER IN W.P.NO.8457 OF 1996: Writ Petition filed under Article 226 ofthe Constitution of India to issue a Writ of certiorarified mandamus tocall for the records on the file of the second respondent pertaining tohis order No.266/068021/DL-6/TTC/95 dated 23.4.96 and quash the same andconsequently direct the respondents to settle the terminal benefits withinterest due and payable to the petitioner in full. https://hcservices.ecourts.gov.in/hcservices/ PRAYER IN W.P.NO.11907 OF 1996: Writ Petition filed under Article 226 ofthe Constitution of India to issue a Writ of certiorarified mandamus tocall for the records on the file of the second respondent relating to hisletter No.92193/C7/TTC/95 dated 20.7.96 and quash the same andconsequently direct the respondents to pay the gratuity in full.For petitioners : Mrs.A.V.Bharathi For respondents : Mr.S.SathyamoorthyC O M M O N O R D E RThese two writ petitions were preferred by the first petitioner, whois since deceased. He is stated to have died on 19.02.1997. Thepetitioners 2 to 4 are the legal representatives of the first petitioner.The first petitioner joined as a Cleaner in the State Transport Departmentin the year 1961. After the formation of the first respondentCorporation, his services came to be transferred to the Corporation in theyear 1975. While he was in service, he was issued with a charge memodated 23.09.1995, in which as many as seven charges were levelled againsthim. The above charges were laid on the footing that while he was workingas a Foreman of Depot – IV, a transport bus bearing Registration No.TN-01-n-275 was stealthily removed from the depot under a despatch slip signedby him and that the said bus could not be later on traced and thereby,heavy loss was caused to the first respondent Corporation. The firstpetitioner submitted his explanation on 28.09.1995. Thereafter, anenquiry was held in which the first petitioner fully participated. TheEnquiry Officer submitted his findings based on which a second show causenotice was issued to him on 19.02.1996. The first petitioner submittedhis explanation dated 09.03.1996. Subsequently, he was issued with anorder of dismissal dated 23.04.1996 apart from ordering recovery of a sumof Rs.21,200/- towards part of the loss caused due to the missing of theTransport bus. In the mean time, it is stated that the first petitionerreached the age of superannuation on 31.12.1995 and by proceedings dated27.01.1996 issued by the Managing Director of the first respondentCorporation, it is mentioned that the first petitioner along with nineothers was retired on 31.12.1995 from the services of the first respondentCorporation. Challenging the ultimate order of dismissal dated23.04.1996, the first petitioner preferred W.P.No.8457 of 1996. After theorder of dismissal, the first respondent Corporation issued proceedingsdated 20.07.1996 holding that in view of the dismissal order passedagainst the first petitioner and since the misconduct related to missingof a transport bus belonging to the first respondent Corporation, thefirst petitioner is not entitled to payment of gratuity. That apart, bythe said proceedings the first petitioner was informed about the otherdeductions to be made from the terminal benefits payable to him, whichincluded the Housing Loan, Festival Advance, Excess Bonus made, EducationAdvance and a sum of Rs.21,200/- towards part amount payable by the first https://hcservices.ecourts.gov.in/hcservices/ petitioner for the loss of the bus. Challenging the same, the firstpetitioner has preferred W.P.No.11907 of 2006.2. Assailing the order of dismissal dated 23.04.1996,Mrs.A.V.Bharathi, learned counsel for the petitioners at the outsetcontended that since the first petitioner reached the age ofsuperannuation and was also allowed to retire on and from 31.12.1995, inthe absence of any provision in the rules and regulations governing theservice conditions of the first petitioner in the first respondentCorporation, the impugned order of punishment could not have been validlyissued. According to the learned counsel, unless there is a specificprovision enabling the first respondent Corporation to retain the employeein service for the purpose of continuing the disciplinary action initiatedbefore the date of superannuation of the first petitioner and a positiveorder extending the service for the purpose of continuing the disciplinaryproceedings initiated against the first petitioner, the impugned order ofdismissal was not valid in law and therefore, the same is liable to be setaside. 3. In support of her submission, the learned counsel relied upon theDivision Bench decisions of this Court reported in 2006(4)MLJ 504[P.Muthusamy vs. Tamil Nadu Cements Corporation Ltd., rep. by its Chairmanand Managing Director, Chennai and another], 2005(3)CTC 4 [The State ofTamil Nadu rep. by the Commissioner and Secretary to Govt., HomeDepartment, Fort St.George, Chennai 9 and others vs. R.Karuppiah,Inspector of Police and another] and 1999(2)LLN 993 : AIR 1999 SC 1841[Bhagirathijena vs. Board of Directors, Orissa State Financial Corporationand others]. 4. As against the above submission, Mr.S.Sathyamoorthy, learnedcounsel appearing for the respondents contended that in the firstrespondent Corporation, the service conditions of the employees aregoverned by the model Standing Orders framed under the Tamil NaduIndustrial Employment (Standing Orders) Rules 1947, that under StandingOrder 21, the Management at its discretion is empowered to extend theperiod or service of any workman on reaching the age of superannuation forsuch longer period as may be considered necessary, i.e. beyond 58 yearsand in the light of the said power available with the first respondentCorporation, it should be held that the order of dismissal passed on23.04.1996 though was subsequent to the date of superannuation of thefirst petitioner, the same was validly passed under the Rules. On merits,the learned counsel contended that since the transport bus was stealthilyremoved from Depot No.IV on the basis of the despatch slip signed andissued by the first petitioner as Foreman of the said depot, he wassquarely responsible for the missing vehicle and therefore, in the lightof the gravity of the misconduct found proved against him, the punishmentwas fully justified and the recovery order against the first petitionershould also be not interfered with. https://hcservices.ecourts.gov.in/hcservices/

5. After hearing the respective counsel, I am of the view that thefirst petitioner should succeed on the ground, namely, the lack ofjurisdiction of the respondents in having passed the order of dismissalafter the first petitioner reached the age of superannuation on31.12.1995. A perusal of the proceeding dated 27.01.1996 issued by thefirst respondent disclose that the first petitioner was allowed to retireon 31.12.1995. The said proceeding specifically states as under "31/12/1995y; 10 egh;fs; Xa;t[ bgw;wdh;/ 2 egh;fs; tpUg;g Xa;t[ bgw;Ws;sdh;/ 6 egh;fs;,we;Js;sdh;/ 12-95y; Xa;t[ bgw;wth;fSk;. tpUg;g Xa;t[ bgw;wth;fSk;. ,we;jbjhHpyhsh;fspd; rl;lg{h;t thhpRjhuh;fSk; $dthp khj rk;gsj;jpy; gpoj;jk; bra;Jgl;Lthlh bra;ag;gLk;." Below the above referred to statement, names of ten employees, theirdesignation, employment number and the place of working has been stated.In Sl.No.9, the name of the first petitioner has been mentioned. Thenames of persons who retired on VRS, namely, two employees and the namesof six persons who died have also been mentioned. Therefore, the abovedocument clinchingly establish that the first petitioner was allowed toretire from the services of the respondent Corporation on 31.12.1995.When the said fact is beyond dispute, it is futile on the part of therespondents to contend that he could still be proceeded against by way ofa disciplinary action which was initiated on 23.09.1995, by issuance of acharge memo. 6. In the first place, there is no specific provision in the modelStanding Orders relied upon by the learned counsel for the respondentsspecifically providing for proceeding with the disciplinary action againstan employee who reached his age of superannuation, by retaining him inservice beyond the date of retirement, for the purpose of proceeding withthe disciplinary action initiated prior to the date of his retirement.Therefore, on that ground itself it will have to be held that any furtheraction proceeded with against the first petitioner on and after 31.12.1995in continuation of the charge memo dated 23.09.1995 had no legal sanctionand therefore, there could have been no scope at all for the respondentCorporation to have passed any order of punishment based on the saidcharge memo.7. As far as the Standing Order No.21 is concerned, it deals withretirement. The said clause reads as under:"21. Retirement:- Every workman shall retire on attaining the ageof 58 (fifty-eight) years which shall be the age ofsuperannuation, provided that the Management may in theirdiscretion extend the period or service of any workman onreaching the said age of superannuation for such longer period asmay be considered necessary." https://hcservices.ecourts.gov.in/hcservices/ The said clause in the Standing Order has absolutely nothing to do withthe extension of service for the purpose of continuing the disciplinaryproceedings, since there is no mention about the same in the said clause.On the other hand, a reading of the said clause only disclose that thesaid clause is only an enabling provision for the respondent Corporationto exercise its discretion for extending the age of superannuation orperiod of service of any workman, in the event of any necessity arisingfor the same. By no stretch of imagination it can be held that the saidclause is relatable to disciplinary proceedings and for extension of anyone service for the purpose of continuing the disciplinary proceedings. Inthis context, the decisions relied upon by the learned counsel for thepetitioner are apposite on the point. In the Division Bench decisionreported in 2006(4)MLJ 504, (cited supra), Justice P.Sathasivam, (as hethen was) by relying upon the decision of the Hon'ble Supreme Courtreported in AIR 1999 SC 1841, (cited supra) has held that in the absenceof any specific enabling provision in the service rules, even any orderpassed reserving the right to continue the disciplinary proceedings aftersuperannuation is illegal and without jurisdiction. In fact, in thedecision reported in AIR 1999 SC 1841(cited supra), the Hon'bleSupreme Court has stated the legal position as under in paragraph Nos.6and 7:"6. It will be noticed from the abovesaid regulations thatno specific provision was made for deducting any amount from theprovident fund consequent to any misconduct determined in thedepartmental enquiry nor was any provision made for continuanceof departmental enquiry after superannuation.7. In view of the absence of such a provision in theabovesaid regulations, it must be held that the Corporation hadno legal authority to make any reduction in the retiral benefitsof the appellant. There is also no provision for conducting adisciplinary enquiry after retirement of the appellant nor anyprovision stating that in case misconduct is established, adeduction could be made from retiral benefits. Once theappellant had retired from service on 30.6.1995, there was noauthority vested in the Corporation for continuing thedepartmental enquiry even for the purpose of imposing anyreduction in the retiral benefits payable to the appellant. Inthe absence of such authority, it must be held that the enquiryhad lapsed and the appellant was entitled to full retiralbenefits on retirement."That apart, in the decision reported in 2005(3)CTC pg 4 (cited supra) yetanother Division Bench judgment reported in 1997 WLR 120 [N.M.Somasundaramvs. The Director General of Police, Madras 4 and others] has been reliedupon and the law stated therein has been extracted in paragraph No.22,which reads as under: https://hcservices.ecourts.gov.in/hcservices/ "A reading of Rule 56(a) and (c) together would lead to anirresistible conclusion that in order to retain a public servantor a Government servant in service on attaining his age ofsuperannuation, a positive order in writing shall have to bepassed by the Government giving the reasons as to on whatgrounds which should be on public grounds, a Government servantis retained in service. No doubt Rule 56(c) says that aGovernment servant under suspension on a charge of misconductshould not be required or permitted to retire of his reachingthe date of compulsory retirement. It further says that heshould be retained in service until the enquiry into the chargeis conducted and a final order passed thereon by the CompetentAuthority. Therefore, even though it may not be necessary topermit to Government servant against whom a disciplinaryproceeding is pending, to retire from service, in order toretain him in service for the purpose of disciplinaryproceedings, a positive order in writing is required to bepassed. The public ground for passing the said order is thependency of the disciplinary proceeding. But, what is necessaryis that there should be an order passed by the Government notpermitting a Government Servant to retire from service. Theinstruction under Rule 56(c) also does not help the StateGovernment. The instruction reads thus:....."(Emphasis added)8. A perusal of the above referred to decisions make it abundantlyclear that in the absence of any specific provision in the serviceregulation or Standing Orders enabling the Management to proceed with thedisciplinary action beyond the date of superannuation and that too afterpositive order in writing to that effect, there will be no jurisdictionvested with the Management to proceed with the disciplinary actioninitiated against an employee prior to the date of his retirement. 9. In the light of the said legal position and applying the same tothe case on hand, since the first petitioner indisputedly reached the ageof superannuation on 31.12.1995, the order of dismissal passed on23.04.1996 without any provision available in the Standing Ordersapplicable to the first respondent Corporation or any other serviceregulation available as on date enabling the respondent Corporation forretaining or extending the period of service of an employee, specificallyfor the purpose of continuing the disciplinary action initiated againstthe first petitioner on 23.09.1995, the impugned order of dismissal passedon 23.04.1996 is not valid in law and the same is liable to be set aside. 10. In the light of the setting aside of the order of dismissal, theproceedings dated 20.07.1996 impugned in W.P.No.11907 of 1996 to theeffect that the first petitioner was not entitled for gratuity cannot alsobe upheld, though the other part of the order relating to recoveries https://hcservices.ecourts.gov.in/hcservices/ ordered as against the first petitioner including the recovery of sum ofRs.21,200/- towards his part of the liability for the loss of the bus wasjustified. Having regard to my above conclusions, W.P.No.8457 of 1996stands allowed and W.P.No.11907 of 1996 is partly allowed, viz., to theextent to which the impugned proceeding dated 20.07.1996 deprived thefirst petitioner the entitlement of gratuity. In other respects, theorder dated 20.07.1996 stands confirmed. In the light of setting aside ofthe order of dismissal impugned in W.P.No.8457 of 1996, it goes withoutsaying that the first petitioner is entitled for the settlement of all histerminal benefits with 7.5% interest, which is the prevailing rate ofbank interest. No costs.gmsSd/-Asst.Registrar/true copy/ Sub Asst.RegistrarTo1. The Managing Director, Thiruvalluvar Transport Corporation Ltd., Pallavan Salai, Madras 2.2. The General Manager, Thiruvalluvar Transport Corporation Ltd., Pallavan Salai, Madras 2. +2 cc to Mr.S.Sathiamurthi, Advocate Sr.Nos.53509 & 53510.+2 cc to M/s.A.V.Bharathi, Advocate Sr.Nos.53260 & 53263.KLT(CO)dcp/6.9W.P.Nos.8457 and 11907 of 1996