Madras High Court
The Management vs The Presiding Officer on 31 July, 2017
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 31.07.2017
CORAM
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
W.P(MD)No.8946 of 2009
&
M.P.(MD).No.1 of 2009
The Management,
Tamilnadu State Transport Corporation
(Madurai) Limited,
Dindigul Region,
Bye-Pass Road, Collectorate P.O.,
Dindigul-624 004. ... Petitioner
Vs.
1.The Presiding Officer,
Labour Court,
Thiruchirapally,
Dindigul Camp,
2.The Secretary,
Tamilnadu Arasu Pokuvarathu
Tholilar Sangam (CITU),
Dindigul 1. ...
Respondents
PRAYER: Writ Petition is filed under Article 226 of the Constitution of
India, praying for issuance of a Writ of Certiorari calling for the records
on the file of the 1st respondent pertaining to its proceedings in ID
No.165/2003, dated 30.05.2008 and quash the same.
!For Petitioner : Mr.S.C.Herold Singh
For respondents : Mr.S.Arunachalam for R2
:ORDER
This writ petition has been filed challenging the order made in I.D.No.165 of 2003, dated 30.05.2008 passed by the Labour Court, Dindigul Camp in and by which, the Labour Court modified the punishment of withholding of increment for one year with cumulative effect into without cumulative effect and further directed to treat the period of suspension as workman is on duty.
2.Several charges were framed against the employee of the petitioner management for misconduct and also for dereliction of duty. The Labour Court taking into consideration of the Standing Order No.17(2) of the petitioner corporation held that since there is no specific reference for the employer to withhold the increment of employees with cumulative effect modified the order of punishment accordingly. Challenging the same, the present writ petition has been filed.
3.The main contention of the petitioner management is that the petitioner management being the employer is entitled to impose punishment of stoppage of increment with cumulative effect. It is the discretion of the management, more so when, the standing order clearly provides for imposing such penalty. It is further submitted that merely because the word ''with cumulative effect'' is not stated in the Standing Order, it cannot be stated, as if there is no power for the management to impose such penalty. Hence, learned counsel for the petitioner prayed that the orders passed by the Labour Court may be set aside.
4.The learned counsel appearing for the second respondent would submit that the punishment shall be imposed only in accordance with the standing order. He would further submit that when there is no specific clause in the Standing Orders relating to stoppage of increment with cumulative effect, the punishment imposed by the management is against the Rules. He would further submit that the Labour Court has rightly modified the punishment imposed by the management.
5.In support of his contention, learned counsel for the second respondent relied upon the following judgments:-
(i)Vijay Singh Vs. State of Uttar Pradesh reported in 2012 (4) LLN 65 (SC) and
(ii)South Bengal State Transport Corporation vs. Ashok Kumar Ghosh and others reported in 2010 (3) L.L.N.15 (SC).
6.I have heard the submissions made by the learned counsel on either side and perused the order of the Labour Court and the entire materials filed in the support of the writ petition carefully.
7. The issue to be decided in the writ petition is whether the stoppage of increment with cumulative effect could be passed by the management or not?
8. In this context, clause-17 of the Standing Orders of the petitioner management is reproduced hereunder:-
17)Punishment for misconduct:
1.A workman may be fined upto two percent of his wages in a month for acts and omissions notified by the employer in pursuance of Section 8 of the Payment of Wages Act, 1936.
2.The employer may withhold the increment due to a workman, if he is on an incremental soals or demote him to a lower post.
3.A workman may, on a charge of misconduct supported by satisfactory evidence recorded at an enquiry held for the purpose be suspended for a period not exceeding 30 days or dismissed, but such workman shall not be entitled to any notice of any compensation in lieu of such notice.
4.(a). Where disciplinary proceeding against a workman is contemplated or is pending or where criminal proceedings against him in respect of any offence are in progress and the employer is satisfied that it is necessary or desirable to place the workman under suspension, he may, by order in writing suspend him with effect from such date as may be specified in the order. A statement setting out in detail the reason for such suspension shall be supplied to the workman within a week from the date of suspension.
(b) A workman, who is placed under suspension under clause (a), shall, during the period of such suspension, be paid a subsistence allowance at the following rates,
(i)Where the enquiry contemplated or pending is departmental, the subsistence allowance shall, for the first ninety days from the date of suspension, be equal to one half of the basic wages, dearness allowance and other compensatory allowances to which the workman would have been entitled, if he were on leave with wages. If the departmental enquiry, gets prolonged and the workmen continues to be under suspension for a period exceeding ninety days, the subsistence allowance shall of such basic wages, dearness allowance and other compensatory allowances;
Provided that where such enquiry is prolonged beyond a period of ninety days for reasons directly attributable to the workman, the subsistence allowance shall, for the period exceeding ninety days, be reduced to one- fourth of such basic wages, dearness allowance and other compensatory allowances.
(ii)Where the enquiry is by an outside agency or as the case may be, where criminal proceedings against the workman are in progress, the subsistence allowance shall for the first one hundred and eighty days from the date of suspension, be equal to one-half of his basic wages, dearness allowance and other compensatory allowance, to which the workman would have been entitled if he were in leave. If such enquiry or original proceedings gets prolonged and the workman continues to be under suspension for a period exceeding one hundred and eighty days, the subsistence allowance shall, for such period, be equal to three-fourths of such basic wages, dearness allowance and other compensatory allowances;
Provided that where such enquiries or criminal proceedings are prolonged beyond a period of one hundred and eighty days for reasons directly attributable to the workmen, the subsistence allowance shall, for the period exceeding one hundred and eighty days, be reduced to one-fourth of such basic wages, dearness allowance and other compensatory allowance.
(c)If on the conclusion of the enquiry, or as the case maybe, of the criminal proceedings, the workman has been found guilty of the charges framed against him and it is considered, after giving the workman concerned a reasonable opportunity of making representation on the penalty proposed that an order of dismission or suspension or fine or stoppage of annual increment or reduction in rank would meet the ends of justice, the employer shall pass an order accordingly.
Provided that when an order of dismissal is passed under this clause, the workman shall be deemed to have been absent from duty during the period of suspension and shall not be entitled to any remuneration for such period and the subsistence allowance already paid to him shall not be recovered.
Provided further that when an order of suspension is passed under this clause and the period between the date on which the worker was suspended from duty pending the enquiry or investigation or trial and the date on which the final order of suspension was passed exceeds thirty days, the workman shall be deemed to have been suspended only for thirty days or for such shorter period as in specified in the paid final order of suspension and for the remaining period, he shall been entitled to the same wages as he would have received if he had not been place under suspension, after deducting the subsistence allowance paid to him for such period;
Provided also that when an order imposing the fine or stoppage of annual increment or reduction in rank in passed under this clause, the workman shall be deemed to have been on duty during the period of suspension and shall be entitled to the same wages as he would have received if he had not been placed under suspension, after deducting the subsistence allowance paid to him for such period.
9.It is seen from the Standing Orders that petitioner management is having power even to dismiss the employee based on the gravity of the charges. Clause 2 of the Standing Orders also gives power to the employer to withhold increment due to a workman. When the power to impose punishment of stoppage of increment is very much available in the Standing Orders, it cannot be stated that there is no power for the management to impose the punishment of stoppage of increment with cumulative effect.
10.No doubt, the stoppage of increment with cumulative effect is a major penalty. It is the discretion of the employer to impose the minor or major punishment as per the standing orders depending on the gravity of the charges. When the power to impose stoppage of increment is very much given in the standing orders, it cannot be stated that the petitioner management has no power to impose stoppage of increment with cumulative effect. This Court is of the view that the Standing Orders of the petitioner management provides for stoppage of increment which could be extended even with cumulative effect. Therefore, it cannot be stated that there is no standing order, for imposing such punishment at all.
11.If the contention that the stoppage of increment without cumulative effect alone can be passed by the management is to be accepted, then the object of the standing orders itself would be defeated. Hence, I am of the view that the management has power to impose the punishment of stoppage of increment with or without cumulative effect, considering the nature of the gravity of the charges as against the delinquent officer.
12.In Vijay Singh Vs. State of Uttar Pradesh reported in 2012 (4) LLN 65 (SC), while considering the question as to whether the Disciplinary Authority can impose the punishment not prescribed under statutory Rules, the Honourable Supreme Court held that there is no provision in the Rules to withhold the integrity certificate and the employer exercised such power to withhold the integrity certificate which is deliberately outside the purview of the statutory Rules and further held that the action on the part of the management is not according to law. The above judgment is not applicable to the facts of the present case.
13.Similarly, in the case of South Bengal State Transport Corporation vs. Ashok Kumar Ghosh and others reported in 2010 (3) L.L.N.15 (SC), the Hon'ble Supreme Court has held as follows.
?16.We may next consider whether the punishment is permissible in service jurisprudence. It is well settled that while an employee can be reverted to a lower post or service, he cannot be reverted to a post lower than the post in which he entered service (See. Nyadar Singh Vs. Union of India [A.I.R. 1988 S.C. 1979]. Further it is also well settled that reversion to lower post or service does not permit reversion to a post outside the cadre that is from regular post to a daily wage post. We are therefore of the view that the punishment inflicted on the delinquent employee not being one of the punishments enumerated in Regulation 36, is not permissible in law.?
14.In the above case, the Honourable Supreme Court taking into consideration the punishment as reduction in rank to the post outside the cadre, held that the punishment inflicted on the employee is not according to law. The above case is also not applicable to the facts of the present case. In any event, taking into consideration the standing order which empowers the management to impose the punishment of stoppage of increment such power cannot be confined only for stoppage of increment without cumulative effect. When the management has power to even dismiss the employee, is higher punishment, it is automatic that management has power to impose lower punishment.
15.For all the foregoing reasons, the order of the Labour Court is liable to be set aside. Accordingly, the punishment imposed by the management, namely stoppage of increment for one year with cumulative effect and the period of suspension from 24.12.1996 to 27.10.1996 has been treated as permitted leave, is confirmed setting aside the order of the Labour Court in I.D.No.165/2003 dated 30.05.2008. Consequently, the Writ Petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.
To
1.The Presiding Officer, Labour Court, Thiruchirapally, Dindigul Camp,
2.The Secretary, Tamilnadu Arasu Pokuvarathu Tholilar Sangam (CITU), Dindigul 1..