Judgment · High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 30-10-2007CoramThe Honourable Mr.Justice K. VENKATARAMANW.P.Nos.29764 to 29771 of 2007andConnected M.Ps.P.Vasu .. Petitioner in WP 29764/07 & WP 29765/07D.Devadhasan .. Petitioner in WP 29766/07 & WP 29767/07M.Govindasamy .. Petitioner in WP 29768/07 & WP 29769/07D.Purushothaman .. Petitioner in WP 29770/07 & WP 29771/07Vs.Tamilnadu State Transport Corporation(Villupuram) Ltd, Kancheepuram Region, rep. by its General Manager, Kancheepuram. ..1st Respondent in all the above WPs.The Branch Manager, Thiruthani Depot, Tamilnadu State Transport Corporation(Villupuram) Ltd, Kancheepuram Region, Thiruthani. .. 2nd respondent in WP Nos.2976529767, 29769 & 29771 of 2007 https://hcservices.ecourts.gov.in/hcservices/ W.P.No.29764 of 2007 filed under Article 226 of the Constitution of India praying to issue a writ of certioraricalling for the records pertaining to the Charge MemoNo.370/187/Sa.06,TNSTC/2007 dated 4.9.2007 issued by therespondent and quash the same.W.P.No.29765 of 2007 filed under Article 226 of the Constitution of India praying to issue a writ of certioraricalling for the records pertaining to the order in MemoNo.4256/Pa.3/TNSTC(Vi)/Kanchi/2007 dated 5.9.2007 of the 1strespondent and the order of the 2nd respondent in MemoNo.143/BM/TNSTC/07 dated 7.9.2007 and quash the same.W.P.No.29766 of 2007 filed under Article 226 of the Constitution of India praying to issue a writ of certioraricalling for the records pertaining to the Charge MemoNo.370/1870/Sa.06,TNSTC/2007 dated 4.9.2007 issued by therespondent and quash the same.W.P.No.29767 of 2007 filed under Article 226 of the Constitution of India praying to issue a writ of certioraricalling for the records pertaining to the order in MemoNo.4253/Pa.3/TNSTC(Vi)/Kanchi/2007 dated 5.9.2007 of the 1strespondent and the order of the 2nd respondent in MemoNo.139/BM/TNSTC/07 dated 7.9.2007 and quash the same.W.P.No.29768 of 2007 filed under Article 226 of the Constitution of India praying to issue a writ of certioraricalling for the records pertaining to the Charge MemoNo.370/1870/Sa.06,TNSTC/2007 dated 4.9.2007 issued by therespondent and quash the same.W.P.No.29769 of 2007 filed under Article 226 of the Constitution of India praying to issue a writ of certioraricalling for the records pertaining to the order in MemoNo.4255/Pa.4/TNSTC(Vi)/Kanchi/2007 dated 5.9.2007 of the 1strespondent and the order of the 2nd respondent in MemoNo.142/BM/TNSTC/07 dated 7.9.2007 and quash the same.W.P.No.29770 of 2007 filed under Article 226 of the Constitution of India praying to issue a writ of certioraricalling for the records pertaining to the Charge MemoNo.370/1870/Sa.06,TNSTC/2007 dated 4.9.2007 issued by therespondent and quash the same.W.P.No.29771 of 2007 filed under Article 226 of the Constitution of India praying to issue a writ of certioraricalling for the records pertaining to the order in MemoNo.4004/Pa.1/TNSTC(Vi)/Kanchi/2007 dated 7.9.2007 of the 1strespondent and the order of the 2nd respondent in MemoNo.148/BM/TNSTC/07 dated 10.9.2007 and quash the same. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr.D.Hariparanthaman For Respondents : Mr.R.Singaravelan ...

O R D E RIn all these Writ Petitions, the petitioners havechallenged the Charge memos as well as the orders of transferissued by the respondents.

The short facts, which are necessary for thedisposal of the present Writ Petitions, are as follows:-The petitioners have joined the services of therespondents-Corporation as Conductor/Driver/Senior Assistant andhave been working at Thiruthani Depot. While so, due to rampantand indiscriminate sand removal/mining from the bank of Kusasthalai River, one of the political parties helddemonstration at Vidaiyur. In support of the cause, AIADMK alsogave a call and organised a dharna/demonstration at the saidvillage on 29.8.2007. In support of the call, various wings ofthe said party, including the trade union wing, extended supportand members of those wings participated in the saiddemonstration. The demonstration took place for one hour from11.00 A.M. to 12.00 Noon in a peaceful and democratic manner. But, the police tried to arrest the important persons due topolitical vendetta and the local public made protest againstsuch move of the police. Due to political pressure, the policearrested about 82 persons and registered F.I.R. against themunder various provisions of the I.P.C. as well as T.N.P.P.D.Act. The petitioners were also arrested and remanded tojudicial custody. They were all enlarged on bail by an orderdated 31.8.2007. The petitioners who have been arrested andenlarged on bail later reported for work at 12.00 noon on3.9.2007, but they have not been allowed to work. While so, the Charge Memo dated 4.9.2007 and transfer order dated 5.9.2007were served on them. In the charge memo, it is alleged thatthey have participated in the demonstration held at Vidaiyur on29.8.2007, got arrested and remanded to judicial custody andthat their act was contrary to the standing orders of the Corporation. Hence, questioning the issuance of the Charge memoand the transfer order, they have approached this Court for thereliefs set out earlier.

Counter affidavit has been filed by the respondentswherein the following facts have been set out:-Since the petitioners have been arrested and remandedto judicial custody, charge memo was issued to them on 4.9.2007.Though they could be suspended from service for their https://hcservices.ecourts.gov.in/hcservices/ misbehaviour in the interest of public, their case has beenconsidered leniently and they have been transferred to variousdepots for the smooth and peaceful atmosphere of the Depot. Thepetitioners absented themselves from duty and participated inthe agitation without any prior notice. Being public sectoremployees and members of the essential services, they should nothave participated in the agitation organised by the politicalparty other than the trade union. As per Clause 24(XLiii)Corporation Standing Orders, the conduct of the petitionersamounts to grave misconduct and hence, charge memo has beenissued to them in the interest of public and that they have beentransferred. Since the petitioners absented from duty withoutany prior intimation, the Corporation was put to great hardship. Thus, the sum and substance of the counter affidavit is that theissuance of charge memo as well as the order of transfer havebeen made since the petitioners have participated in theagitation without any prior intimation which is in violation ofthe Corporation Standing Orders.

Common rejoinder affidavit has been filed by thepetitioners wherein the following averments are made:-Unlike the Government servants, the industrialemployees have no legal bar or prohibition for being a member ofa political party. The provisions of the Trade Unions Act, particularly Section 16 of the Act recognises the right of aworkmen/member/office bearer to associate with a political partyof his choice. Hence, simply because the petitionersparticipated in the agitation called by a political party, therespondents cannot issue a charge memo and transfer orderenmasse. The charge memos as well as transfer orders have beenissued only due to political mala fide/hatred. Furthermore, permission from the employer for their participation in suchdemonstration which is outside their employment and unconnectedwith their employment is not necessary. The petitioners havedecided to participate in the demonstration as they thought thatit will be over in an hour and they could return to work asusual, and they never thought they would be arrested andremanded to judicial custody.

On the background of the above facts, Mr.D.Hariparanthaman, the learned counsel appearing for thepetitioners and Mr.R.Singaravelan, the learned counsel appearingfor the respondents have made their submissions.

The case of the respondents is that thepetitioners, who were working in Thiruthani Depot, haveparticipated in the agitation called by a political party andthey were arrested and remanded to judicial custody on 29.8.2007A.N. to 31.8.2007 and they reported for duty on 4.9.2007 and onthat date, the impugned orders have been issued to them. Thecharge against the petitioners was that they have participatedin the agitation on 29.8.2007 at Vidaiyur village and arrestedby the police authorities. Thus, the show cause notice wasissued to them citing Clause 24(xxx) of the Certified StandingOrders calling upon them to explain why action should not betaken against them. From the said proceedings, it could be seenthat charges against the petitioners are that they haveparticipated in the agitation on 29.8.2007, got arrested anddetained in prison. The English version of the charges againstthe petitioners are as follows:-"(1) On 29.8.2007, you haveparticipated in the agitation held at Vidaiyur and you have been arrested and putin prison. (2) The said act on your part isagainst the Corporation Standing Orders. "

Thus, as could seen from the above charges, therespondents have taken action against the petitioners for theirparticipation in the agitation held on 29.8.2007 and theirsubsequent arrest and detention in prison, which led to theissuance of the impugned proceedings to the petitioners. Furthermore, Clause 24(xxx) of the Certified Standing Orders hasbeen cited in the impugned proceedings. If we look at Clause 24(xxx) of the Certified Standing Order, it speaks about onlyconviction by a criminal court of an offence involving moral https://hcservices.ecourts.gov.in/hcservices/ turpitude and punishable with imprisonment. The provisionreferred to above in the Certified Standing Orders enumeratesaction against an employee who has been convicted by a criminalcourt of an offence involving moral turpitude and punishmentwith imprisonment, but it does not specify the person who hasbeen arrested pursuant to the lodging of criminal proceedings. Thus, there cannot be charge against the petitioners that theyparticipated in the agitation and they have been arrested andput in prison, constituted misconduct and liable fordisciplinary action.

While the petitioners specifically raised the saidcontention in paragraph 9 of the counter affidavit, it has beenstated as follows:-"With regard to para (17) Charge Memo hasbeen issued on the report received from the Branch Manager, Tiruthani along with a copy ofthe F.I.R. and it is nothing to do with thecriminal case which is different from thepurpose for which the Charge Memo has beenissued as it has been issued for his suddenabsence and taking part in the agitation. "Again in paragraph 13, it is stated as follows:-"The Charge Memo is for the violation ofthe Board Standing Orders and hisparticipation in the agitation without anyprior intimation affecting the publicinterest. As a member of Essential Serviceof Public Utility concern he ought not tohave absented himself from duty without anyprior intimation. "

If the respondents have issued the charge memo forviolation of the Certified Standing Orders for theirparticipation in the agitation without any prior intimation andfor their sudden absence, the respondents would have stated soin the "charge memo". But, as pointed out earlier, the chargememos have been issued to the petitioners for theirparticipation in the agitation, which led to their arrest anddetention in jail. The counsel for the respondents has notpointed out any provision in the Certified Standing Orders thatthe employees of the respondents are prohibited from taking partin political agitation. Striking work or inciting others tostrike work, habitual absence without leave or absence withoutleave for more than 8 consecutive days or overstayingsanctioned leave without sufficient grounds or satisfactoryexplanation, participating or engaging in demonstrations whichare not peaceful and rowdism in demonstration, interference withor disturbance to normal work; and conviction by a criminal https://hcservices.ecourts.gov.in/hcservices/ court of an offence involving moral turpitude and punishablewith imprisonment are some of the acts and omissions which havebeen enumerated under Clause 24 of the Certified StandingOrders, which will enable the employer from taking disciplinaryaction against the employees. The respondents have specificallypointed out Clause 24(xxx) of the Certified Standing Orders. Ifreally, the intention of issuing the charge memo was for thereason that the petitioners have absented themselves which hadaffected the public interest and that the said participation inthe agitation was done without prior intimation, the same wouldhave found part in the charge memo.

Thus, I am constrained to come to a conclusionthat the respondents have invoked only Clause 24(xxx) of the Certified Standing Orders under which a person who has beenconvicted by a criminal court of an offence involving moralturpitude and punishable with imprisonment alone could be issuedwith a charge memo, and since in the case on hand, thepetitioners have not been convicted for an offence involvingmoral turpitude, the charge memo issued to them invoking thesaid provision is not permissible.

In this connection, the learned counsel appearingfor the petitioners cited a judgment of the Honourable ApexCourt reported in 1984 (1) L.L.N. 57 (GLAXO LABORATORIES (INDIA)LTD v. LABOUR COURT, MEERUT AND OTHERS). The relevant passagein the said judgment in paragraph 23 reads as follows:-"In short, it cannot be left to thevagaries of management to say ex post facto thatsome acts of omission or commission nowhere foundto be enumerated in the relevant standing order isnonetheless a misconduct not strictly fallingwithin the enumerated misconduct in the relevantstanding order but yet a misconduct for thepurpose of imposing a penalty. Accordingly, thecontention of Sri Shanthi Bhushan that some otheract of misconduct which would be per se be an actof misconduct though not enumerated in StandingOrder 22 can be punished under Standing Order 23must be rejected. "

The same view was expressed by the Division Benchof this Court reported in 1990 (2) L.L.J. 96 (S.ALAMELU v. S.E.ELECTRICITY SYSTEM)and 1995 (1) L.L.N. 1198 (J.DHANARAJ v. T.N.ELECTRICITY BOARD). The above authorities make it very clearthat no disciplinary action can be taken against an employee ifsuch act has not been enumerated in the Standing Orders. In thepresent case on hand, as I discussed already, the misconductthat has been attributed against the petitioners is that theyhave participated in the agitation, got arrested and put inprison. The said act or omission does not find place in Order https://hcservices.ecourts.gov.in/hcservices/ 24(xxx) of the Certified Standing Orders which invitesdisciplinary action.

Furthermore, as discussed earlier, the agitationwas not within the factory premises but totally in a differentvillage. To enable an employer to peacefully carry outindustrial activity, the Act confers powers on him to prescribeconditions of service including enumerating acts of misconductwhen committed within the premises of the establishment. Sincethe agitation was not within the factory premises, the employercannot say that the agitation elsewhere held is a misconduct, especially, when such an act does not constitute an act oromission which constitutes 'misconduct' warranting disciplinaryaction against the employees as per the Certified StandingOrders. Thus, a harmonious construction, if applied, theexpression 'misconduct' in Standing Order 24 refers to thoseacts of omission or commission referred thereon and none else.

The discussion made above will amply establishthat the respondents have issued the impugned proceedings, thereading of which will demonstrate that it does not constituteany misconduct as enumerated under Clause 24(xxx) of the Certified Standing Orders. Since I have come to the conclusionthat the said provision cannot be invoked against thepetitioners for the reasons stated above, I am inclined tointerfere with the issuance of the charge memo to thepetitioners.

Regarding the orders of transfer made against thepetitioner, it cannot be denied that the petitioners have beentransferred for their participation in the agitation called by apolitical party which is an opposition party in the State. Eventhe impugned orders of transfer do not say that the petitionershave been transferred on administrative grounds. Though I amconscious of the fact that the order of transfer could notnormally be interfered, as has been held by the variouspronouncements of this Court as well as by the Honourable ApexCourt, since I have come to the conclusion that the presentorders of transfer have been passed in view of the participationof the petitioners in the agitation called by the oppositionparty, I am inclined to interfere with the orders of transferpassed against the petitioners. The impugned orders of transfermake it explicitly clear that implied malice is writ large onthe face of the records and the order of transfer cannot be atool in the hands of the respondents and be used as a weapon inthe interest of administration.