Tamil Nadu State Transort Corporation,(Madurai Division.III Ltd,Nagercoil v. The Presiding Officer, Labour Court, Tirunelveli & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 27-8-2009CORAMTHE HONOURABLE MR. JUSTICE N. PAUL VASANTHAKUMARWRIT PETITION Nos.19196 and 12033 of 2001Tamil Nadu State Transort Corporation,(Madurai Division.III Ltd,Nagercoil...Petitioner in W.P.19196/2001 &2nd Respondent in W.P.12033/2001Vs.1.The Presiding Officer,Labour Court,Tirunelveli....1st Respondent in both petitions2.C. Mehanathan... 2nd Respondent in W.P.19196/2001 & Petitioner in W.P.12033/2001Prayer in W.P.No.19196/2001:Writ Petition filed under Article 226of the Constitution of India praying for the issuance of a Writ ofcertiorari calling for the records relating to the award inI.D.No.464/90 on the file of the first respondent dated 31.7.2000published in the Government Gazette on 12.9.2000 and quash the sameinsofar as it relates to the direction to reinstate the secondrespondent with continuity of service.Prayer in W.P.No.12033/2001:Writ petition filed under Article 226of the Constitution of India, praying this Court to issue a writ ofCertiorarified mandamus calling for the records of the firstrespondent made in I.D.No.464/90 dated 31.7.2000 and quash the sameas null and void, illegal and invalid insofar as the findingsregarding the denial of promotion and backwages are concerned andconsequently direct the second respondent to promote the petitioneras Checking Inspector with effect from 5.11.1973 treating himeligible to draw all arrears of salary inclusive of the salary forthe post of Checking Inspector from 5.11.1973 together with arrearsfor the temporary promotional posts such as Junior Assistant for theperiods from May 1979 to May, 1980, Time Keeper for the periods from23.11.1987 to 4.4.1989 and full salary for the duty refusal periodsfrom 8.7.89 to 15.10.2000 and with all other service and monetarybenefits. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner in WP.19196/2001:Ms.Kala Ramesh& 2nd Respondent in WP.12033/2001For Petitioner in WP.12033/2001:Mr.A.Amalraj& 2nd Respondent in WP.19196/2001 Mr.N.Rajan1st Respondent in both petitions:Labour CourtCOMMON ORDERIn W.P.No.19196 of 2001, the Transport Corporation prayed toquash the award passed by the Labour Court made in I.D.No.464 of 1990dated 31.7.2000 insofar as it relates to the direction to reinstatethe second respondent with continuity of service.2.In W.P.No.12033 of 2001 the workman, who is the secondrespondent in W.P.No.19196 of 2001 has challenged the very same awardinsofar as denial of promotion and backwages are concerned, withfurther direction to the Transport Corporation to promote him asChecking Inspector with effect from 5.11.1973 with arrears of salaryfor the post of Checking Inspector from 5.11.1973 together witharrears of temporary promotional post of Junior Assistant for theperiod from May, 1979 to May, 1980, Time Keeper for the periods from23.11.1987 to 4.4.1989 and full salary for the period from 8.7.1989to 15.10.2000.3.For the purpose of convenience, the parties in these caseswould be referred to as 'the workman' and 'the management'.4.The case of the workman is that from March 1971 to 1973, heserved in the erstwhile Chellaian Motor Service (a private FleetOperator) as Checking Inspector and in the year 1973, the Transportservice was nationalised, pursuant to the Act called the Tamil NaduFleet Operators Stage Carriage (Acquisition) Act, 1971 (Tamil NaduAct 37 of 1971). Pursuant to the said enactment, i.e,nationalisation of private Transport Services on 3.8.1973, theTransport Department of Government of Tamil Nadu called upon theworkman to attend an interview for the post of Checking Inspector,however, the workman was absorbed only as Conductor with effect from5.11.1973 in the erstwhile Tamil Nadu State Transport Department.The workman submitted representation and requested the Transportdepartment to post him as Checking Inspector, which post he washolding in the private Transport service. The said plea was made bythe workman under Section 15(3) of the Act 37 of 1971, wherein it isstated that every employee of the Fleet Operator, exclusivelyemployed in connection with the acquired property before the notifieddate, shall be absorbed on the same terms and conditions and with thesame rights to pension, gratuity and other matters as would have beenadmissible to him, if the acquired property had not vested with the https://hcservices.ecourts.gov.in/hcservices/ Government and transfer of the acquired property to the Corporationor Company owned by the Government of Tamil Nadu. From 1.1.1974various State Transport Corporations were formed.5.The workman was absorbed in the erstwhile KattabommanTransport Corporation as Conductor and he joined in the saidCorporation without prejudice to his right to claim CheckingInspector post and after joining duty, he made representationsclaiming benefits as per the above said statutory provision. Theworkman's service as Conductor was regularised with effect from1.12.1976 and in May, 1979, he was promoted as Junior Assistant withthe same pay and allowance as Conductor. He worked in the samecapacity till May, 1980, and in June, 1980, he was reverted back asConductor. From 1.4.1983 the Kattabomman Transport Corporation wasbifurcated and Nesamany Transport Corporation was formed. The workmanwas absorbed as Conductor in the Nesamany Transport Corporation. Evenafter absorption of the workman in the Nesamany Transport Corporationhe submitted representations and requested the Corporation to promotehim as Checking Inspector with effect from 5.11.1973 with allattendant benefits. The said Nesamany Transport Corporation promotedthe petitioner as Time Keeper from 23.11.1987 and till 4.4.1989 hecontinued in the said post. However, for the said period also he waspaid only the salary of the Conductor.6.On 3.3.1989 the workman submitted representation to thePredecessor-in-interest of the Transport Corporation seekingpromotion as Checking Inspector and no action having been taken inspite of expiry of 15 years, he filed an application for conciliationin Conciliation Note No.677/89 before the Conciliation Officer,Nagercoil, which was returned with an endorsement stating that thesame should be filed through the Trade Union. Consequently, on17.4.1989 the workman filed another application for conciliationthrough the Trade Union called Anna Trade Union. However, on30.10.1989 the same was dismissed for default due to the non-prosecution by the Trade Union. The workman was denied duty from8.7.1989 without any written orders. The workman made representationto the management through the Trade Union called Tamil NaduPokkuvarathu Kazhaga Tholilalargal Sangam and claimed duty as well aspromotion. The Government issued G.O.D.No.177 dated 13.8.1990 andreferred the dispute before the Labour Court and the reference readsas follow:"Whether the demand of the workman that ThiruC.Mehanathan be promoted as Checking Inspector isjustified ? If so, to give appropriatedirection." Pursuant to the above, I.D.No.464 of 1990 was considered by the firstrespondent Labour Court and the impugned award was passed. https://hcservices.ecourts.gov.in/hcservices/

7.The said award of the Labour Court is challenged by theworkman as well as the management for the respective relief as statedsupra. The workman was reinstated as conductor pursuant to the awardof the Labour Court and no stay of reinstatement was sought for inthe writ petition filed by the management. Thus, the workman is inservice from the year 2000.8.In the writ petition filed by the management it is statedthat the workman was engaged as Conductor in the TransportCorporation and he was discharging his duty till 7.4.1989 and from8.4.1989, without any intimation he absented. Hence charge sheet wasissued on 27.7.1989 for availing leave from 8.4.1989 to 7.7.1989,without medical certificate obtained from the Corporation MedicalOfficer, and for his absence from 8.7.1989 without prior permissionand without leave letter and thereby caused inconvenience to the day-to-day work of the depot. The explanation submitted by the workmanhaving been found not satisfactory, enquiry was proposed to beconducted on 11.2.1989, 30.12.1989 and 13.1.1990. The workmanabsented for all the dates of enquiry and on 3.2.1990, the workmanwas set exparte and exparte minutes was drawn holding that thecharges are proved. Subsequently provisional decision to dismiss theworkman from service was taken and show cause notice was issued.Since I.D.No.464 of 1990 was pending, the Corporation filedapplication under section 33(1) of the Industrial Disputes Act, 1947,and the same was numbered as I.A.No.1 of 1991 and prayed forpermission to dismiss the workman. The above interlocutoryapplication was heard along with the main industrial dispute andaward was passed to the effect that the workman is entitled to beposted as Conductor and not as Checking Inspector, without backwages.The contention raised in the said writ petition is that in thedepartmental enquiry the charge of unauthorised absence having beenproved, the Labour Court ought to have given permission to dismissand ordering reinstatement without backwages with continuity ofservice is unsustainable.9.The learned counsels for the workman argued that theworkman having been employed in a private Fleet Service and the samehaving been taken over by the Tamil Nadu Act 37 of 1971, and theworkman having been employed as Checking Inspector in a privateTransport service and he having been called for interview by theTransport Department in the year 1973, the second respondent was notjustified in posting the workman as Conductor in the TransportDepartment and the repeated representation submitted by the workmanwhile serving in the Transport department, Kattabomman TransportCorporation and Nesamany Transport Corporation having been notconsidered, the workman raised the dispute before the Labour Courtand in the said dispute Labour Court failed to appreciate thestatutory protection given to the workman under section 15(3) of theAct. The learned counsels also submitted that the workman was alsonot given salary of the post of Assistant and Time Keeper even though https://hcservices.ecourts.gov.in/hcservices/ he discharged the said functions and the same is an unfair labourpractice. The learned counsels further submitted that for hisabsence he produced medical certificate from the Medical Officer andthe only objection is that the medical certificate was not obtainedfrom the Corporation Medical Officer and therefore the Labour Courthas rightly rejected the permission sought for to dismiss theworkman. However, the Labour Court failed to order backwages andother benefits payable to the workman as Checking Inspector.10.The learned counsel for the Transport Corporation on theother hand submitted that though interview call letter was issued tothe workman at the time of nationalisation to appear for interviewfor the post of Checking Inspector, the workman was appointed only asConductor and he also accepted the same and joined in the post andtherefore he cannot seek the post of Checking Inspector, that tooretrospectively. The learned counsel also submitted that the LabourCourt was not justified in ordering reinstatement with continuity ofservice when the workman absented without getting sanction of leaveby producing medical certificate from the Corporation Medical Officer.11.I have considered the rival submissions made by the learnedcounsel for the workman as well as the management.12.The issue arises in these writ petitions is as to whetherthe Labour Court is justified in rejecting the claim of the workmanseeking direction to post him as Checking Inspector from 5.11.1973.13.Admittedly the workman was employed as Checking Inspectorin the private transport service called Chellaian Motor Service. Thesame is made clear in the interview call letter issued by the officeof the Joint Director of the Tamil Nadu State Transport Department,Kanyakumari at Nagercoil, in his memo No.975/A2/73 dated 27.7.1993,wherein 13 persons were directed to appear for interview. In thecall letter six persons were called for to attend interview for thepost of Conductor; five persons for the post of Driver and threepersons for the post of Checking Inspector. The workman's name viz.,C.Mehanathan is found in the list of Checking Inspector as item No.3.Thus, it is beyond doubt that on the date of nationalisation of theTransport Service, the workman was holding the post of CheckingInspector in Chellian Motor Service.14.The Tamil Nadu Fleet Operators Stage Carriage (Acquisition)Act, 1971, was enacted to acquire the stage carriages of fleetoperators holding 50 or more stage carriage permits and for certainother matters connected therewith in the State of Tamil Nadu to https://hcservices.ecourts.gov.in/hcservices/ implement the provisions of Article 39 B and C of the Constitution ofIndia. Section 15 of the said Act reads as follows:"15.Transfer of acquired property toCorporation or Company and provisions of existingstaff.(1) The Government shall immediately afterthe vesting of the acquired property under section3 by order transfer the whole of the said propertyin favour of such corporation or company owned bythe Government as the Government may specified insuch order.(2)Where in pursuance of sub-section (1)any stage carriage is transferred to anycorporation or company owned by the Government,the permit in respect of such stage carriageshall, notwithstanding anything contained in theMotor Vehicles Act, be deemed to have beentransferred in favour of such corporation orcompany and such permit shall be valid for theunexpired period thereof. After the expiry of thesaid period, such corporation or company shall beexclusively entitled to the renewal of such permitand an application for such renewal may be made bythe corporation or company at any time before theexpiry of the said permit and the period specifiedin clause (a) of sub-section (2) of section 58 ofthe Motor Vehicles Act, shall not apply to suchapplication.(3)Every employee of the fleet operatorexclusively employed in connection with theacquired property immediately before the notifieddate shall hold his office or service in thecorporation or company referred to in sub-section(1) on the same terms and conditions and with thesame rights to pension, gratuity, and othermatters as would have been admissible to him ifthe acquired property had not vested in theGovernment and transferred to the corporation orcompany and continue to do so unless and until hisemployment in such corporation or company isterminated or until his remuneration, terms orconditions are duly altered by such corporation orcompany: https://hcservices.ecourts.gov.in/hcservices/ Provided that in the case of employees towhom labour laws for the time being in forceapply, no such termination or alteration ofremuneration, terms or conditions of service shallbe made except in accordance with such laws.(4)If any question arises as to whether anyperson was exclusively employed in connection withthe acquired property immediately before thenotified date, it shall be decided by theauthorised officer and an appeal shall lie to theGovernment under sub-section (3) of section 14.(5) to (7) omitted." From the above said statutory provision, particularly section 15(3),it is evident that every employee of the Fleet Operator, exclusivelyemployed in the Transport Service before the notified date, shallhold his office or service on the same terms and conditions with samerights to pension, gratuity and other matters and continue to get thesame benefit. Thus, the action of the second respondent/TransportDepartment in absorbing the workman as Conductor is a statutoryviolation, particularly section 15(3) of the Act.15.It is the case of the workman that he objected the actionof the Transport Department in posting him as Conductor. Even ifthere is no objection, the Transport Department is bound to absorbthe workman only as Checking Inspector as he was admittedly holdingthe post of Checking Inspector on the date of nationalisation of theTransport service. It is well settled in law that there cannot beany estoppel against the statute. Therefore the contention of thelearned counsel for the management that the workman joined and servedas Conductor and therefore he cannot claim the post of CheckingInspector, cannot be sustained. The workman was willing to performhis duty as Checking Inspector for all these years. However, heworked as Conductor in the Transport Department/Corporation and nowwith the second respondent and earned salary as conductor.16.The workman is also to be blamed to certain extend that hehad not raised the issue immediately on denial of his posting asChecking Inspector. It is the settled law that mere sendingrepresentation to the authorities is not enough to explain thedelay/latches in approaching the Court. Therefore the workman is notentitled to get salary as Checking Inspector, however for theservices rendered by him as Assistant as well as Time Keeper, he isentitled to get the salary for the said post.17.The Labour Court is justified in ordering reinstatement andcontinuity of service. For denial of backwages no reason is statedby the Labour Court as to whether the workman was gainfully employed https://hcservices.ecourts.gov.in/hcservices/ during the period in which he was not allowed to work. Admittedly nodismissal order was passed by the second respondent, even though inthe exparte enquiry conducted unauthorised absence was found proved.It is an admitted case that workman produced medical certificate forhis taking treatment. The only technical objection raised by theTransport Corporation is that the certificate is not issued by theCorporation Medical Officer. The fact that the workman took leavedue to illness having not been disproved, the Corporation was notjustified in proposing to terminate the service of the workman andthe Labour Court rightly refused to grant permission. Oncepermission is refused under section 33(1)(c), for all purposes theworkman shall be deemed to be in service with salary and otherbenefits. 18.The consequence of not getting permission beforetermination is considered by the Supreme Court in the decisionreported in (1999) 6 SCC 275 (Lokmat Newspapers Pvt. Ltd. v.Shankarprasad) and in paragraph 30 it is held that termination orderpassed in breach of Section 33(1) of the Industrial Disputes Act,1947, is illegal.19.The Standing Order of the second respondent Corporationstates that medical leave can be availed on production of certificateissued by the Corporation Medical Officer or Registered MedicalPractitioner. The charge having been framed stating that the workmanhas not produced medical certificate from the Corporation MedicalOfficer, it goes without saying that the workman produced medicalcertificate from the Registered Medical Practitioner. Hence thecharge framed against the workman itself is unsustainable.20.In fine, the award of the Labour Court insofar as notordering the status as Checking Inspector to the workman from5.11.1973 as well as denial of backwages are set aside. The writpetition filed by the management – W.P.No.19196 of 2001, seeking toset aside the order of reinstatement with continuity of service isdismissed. It is further ordered that the workman shall be treatedto be appointed as Checking Inspector in the TransportDepartment/second respondent Transport Corporation from 5.11.1973notionally, and he should be given posting as Checking Inspectorwithin a period of four weeks from the date of receipt of copy ofthis order and the salary of the workman shall be re-fixed notionallyin the cadre of Checking Inspector from 5.11.1973 till his posting asChecking Inspector and pay the salary of Checking Inspector from thedate of posting him as Checking Inspector. The petitioner is alsoentitled to count his entire service from 5.11.1973 in the cadre ofChecking Inspector for the purpose of seniority and terminalbenefits. The second respondent is further directed to paydifference in pay, if any, for the period in which the workman servedas Assistant and Time Keeper, within a period of four weeks from thedate of receipt of copy of this order. https://hcservices.ecourts.gov.in/hcservices/ The writ petitions are ordered on the above terms. No costs. vr Sd/- Asst.Registrar/True Copy/ Sub.Asst.RegistrarTo1. The Presiding Officer, Labour Court, Tirunelveli.2. The Managing Director, Tamil Nadu State Transport Corporation, Ltd., (Maduari Division.III), Ranithottam, Nagercoil 629 001+ 2 CC's to Mr. P. Sukumar Advocate SR.42762 & 42763+ 1 cc to Mr. No. Rajan Advocate SR.42364. WP.No.19196 & 12033/2001BKY(CO)EU 10.09.2009.