The Tamilnadu State Transport Corporation (Villupuram) Ltd.,rep.by its General Manager,Vellore v. The Joint Commissioner of Labour, (Conciliation), Teynampet, Chennai-6

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 31.08.2010CORAM :THE HONOURABLE MR.JUSTICE S.TAMILVANANW.P.No.35272 of 2006andM.P.No.1 of 2006The Tamilnadu State Transport Corporation (Villupuram) Ltd.,rep.by its General Manager,Vellore, ... PetitionerVs.1.The Joint Commissioner of Labour, (Conciliation), Teynampet, Chennai-6,2.C.Nagarajan... RespondentsWrit Petition filed under Article 226 of the Constitution ofIndia, praying for the issuance of a writ of Certiorari, callingfor the records of the first respondent relating to the order dated12.02.2005, in Approval Petition No.384 of 2003, and to quash thesame. For Petitioner : Mrs.T.Chandrasekaran For Respondents : Mr.A.Edwin Prabhakar, AGP for R1 Mr.S.Ravi for R2O R D E RThe writ petition has been filed under Article 226 of theConstitution of India, seeking an order in the nature of writ ofCertiorarified Mandamus, calling for the records of the firstrespondent, relating to the order dated 12.02.2005, in ApprovalPetition No.384 of 2003, and to quash the same.2. As per the impugned order dated 12.02.2005, it is seen thatone C.Nagarajan, the second respondent herein, an employee underthe petitioner Corporation, was terminated from his service on theground that he was absent in attending his duty for a periodbetween 17.05.2002 to 25.06.2002, while he was working as aConductor, without any intimation or getting sanction of leave. https://hcservices.ecourts.gov.in/hcservices/ Subsequently, the petitioner Corporation approached the JointCommissioner of Labour (Conciliation), Chennai, the firstrespondent herein, for approval of order of the dismissal passed byit. Having considered the application filed under Section 33 (2)(b) of the Industrial Disputes Act, 1947, the first respondentrejected the application on the following reasons:i.While dismissing the opposite party from itsservices, the applicant had not followed theprinciples of natural justice?ii.While dismissing the opposite party from itsservices, the applicant had not followed themandatory conditions of Section 33(2)(b) of theIndustrial Disputes Act, 1947 read with Rule 64(2) of the Tamil Nadu Industrial DisputesRules, 1958.3. Learned counsel appearing for the petitioner drew theattention of this Court to the findings of the Joint Commissionerof Labour (Conciliation), Chennai, which is available at No.3 ofthe impugned order. As per the order, the first respondent hasclearly stated that the past records of the service of the oppositeparty, the second respondent herein, was not considered beforepassing order of dismissal from service against him. The evidence,let in before the first respondent, was sufficient to establishthat the second show cause notice was given to the opposite party.As per the findings, it is clear that the second respondent was notput on notice about his past service. It is not in dispute that thesecond show cause notice said to have been issued to the secondrespondent herein was not marked as a documents and the same wasalso a reason for the first respondent holding that principles ofnatural justice was not followed in the enquiry. The petitionerherein has not established that principles of natural justice wasnot followed by the petitioner while imposing major punishment ofpassing order of termination of service against the secondrespondent herein.4. On the aforesaid facts and circumstances of the case, Icould find no errors in the findings of the first respondentholding that the petitioner herein had failed to follow themandatory provision under Section 33(2)(b) of the IndustrialDisputes Act, 1947 read with Rule 64(2) of the Tamil NaduIndustrial Disputes Rules, 1958. Section 33(2)(b) of the IndustrialDisputes Act, 1947 reads as follows:"for any misconduct not connected with thedispute, discharge or punish, whether bydismissal or otherwise, that workman:Provided that no such workman shall bedischarged or dismissed, unless he has beenpaid wages for one month and an application has https://hcservices.ecourts.gov.in/hcservices/ been made by the employer to the authoritybefore which the proceeding is pending forapproval of the action taken by the employer."Similarly, Rule 64(2) of the Tamil Nadu Industrial DisputesRules, 1958 reads as follows:"An employer seeking the approval of theConciliation Officer, Board, Labour Court orTribunal, as the case may be, of any actiontaken by him under clause (a) or clause (b) ofsub-section (2) of section 33 shall present anapplication in Form "T" in duplicate to suchConciliation Officer, Board, Labour Court orTribunal either personally or by registeredpost with acknowledgment due. A copy of itshall also be served simultaneously eitherpersonally or by registered post acknowledgmentdue on the workman or workman concerned and thefact indicated on the copies of the applicationpresented to the Conciliation Officer, Board,Labour Court or Tribunal, as the case may be."5. In the impugned order, the first respondent has furtherstated as follows:"In its application inform T prescribedunder Rule 64(2) of the Tamilnadu IndustrialDisputes Rules, 1958, seeking approval of thedismissal of the Opposite Party the Applicanthad indicated that copies have been servedsimultaneously by registered post on theOpposite Party as required by sub rule (2) ofRule 64 and the acknowledgment of the Oppositeparty will be filed as soon as it is received.Exhibit A5 is described by the Applicant as theacknowledgment given by the Opposite party forreceiving the dismissal order. It is notdescribed as acknowledgment given for receivingForm T prescribed under Rule 64(2) of theTamilnadu Industrial Disputes Rules 1958. TheApplicant had not produced for my perusal anydocument indicating that the Form T had beensent to the Opposite party. Therefore, I amconstrained to hold that the Applicant had notserved on the opposite party Form T as requiredby Rule 64(2) of the Tamilnadu IndustrialDisputes Rules, 1958."6. It is clear from the findings of the first respondent thatthe mandatory provision under Section 33(2)(b) of the IndustrialDisputes Act, 1947 and Rule 64(2) of the Tamil Nadu IndustrialDisputes Rules, 1958, were not complied with by the petitioner https://hcservices.ecourts.gov.in/hcservices/ herein. Hence, this Court is of the view that there is no error orillegality in the impugned order passed by the first respondentherein, to set aside the same. Though the impugned order waspassed on 12.02.2005, the second respondent was not reinstated bythe petitioner. The petitioner Corporation neither obtained stayagainst the order from any competent Court nor complied with thedirection. For the aforesaid violation, the petitioner Corporationhas to be held responsible.7. On the aforesaid facts and circumstances, to meet the endsof justice, I find it just and reasonable to dismiss the writpetition and also to direct the petitioner herein to reinstate thesecond respondent in service. 8. In the result, this writ petition is dismissed with thedirection, to meet the ends of justice, accordingly, this Courtdirects the petitioner Corporation to reinstate the secondpetitioner in service and to pay 25% back wages from the date ofthe impugned order, dated 12.02.2005 till the date ofreinstatement. This Court further directs the petitioner toreinstate the second respondent within a period of eight weeksfrom the date of receipt of a copy of this order and it is madeclear that the second respondent is entitled to continuity ofservice and all monitory benefits, apart from getting 25% of theback wages from the date of the impugned order till the date ofreinstatement. However, he is not entitled to back wages for theperiod between 17.05.2002 and 25.06.2002. 9. This writ petition is dismissed with the above direction.Consequently, connected miscellaneous petitions are closed. Noorder as to costs.krk / tsvnSd/-Asst. Registrar//True Copy//Sub Asst. RegistrarToThe Joint Commissioner of Labour,(Conciliation),Teynampet, Chennai-6,+ 1 cc to Mr. T. Chandrasekaran, Advocate SR No.64884+ 1 cc to Government Pleader, SR No.65662DM(CO)SR/1.10.2010W.P.No.35272 of 2006