Madras High Court
K.M.Mubarak Basha vs Tamil Nadu State Transports ... on 18 January, 2021
W.P.(MD).No.15187 of 2014
and MP(MD).No.1 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 24.08.2020
PRONOUNCED ON : 18.01.2021
CORAM:
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN
W.P.(MD).No.15187 of 2014
and
MP(MD).No.1 of 2014
K.M.Mubarak Basha ...Petitioner
Vs.
1.Tamil Nadu State Transports Corporation
Kumbakonam Limited,
represented by its Managing Director,
New Railway Station Road,
Kumbakonam.
2.The General Manager,
Tamil Nadu State Transports Corporation Kumbakonam Limited,
Tiruchirapalli.
3.The Sub Registrar,
Arbitrator,
having office at Employees Co-operative
Thrift and Credit Society,
Tiruchirapalli-1 represented by its Secretary.
4.Y.T.Tamil Nadu State Transport Corporation,
(Kumbakonam Division),
Employeees Co-operative Thrift and Credit Society,
Tiruchirapalli-1,
represented by its Secretary. ... Respondents
PRAYER: Writ Petition is filed under Article 226 of the Constitution
of India to issue Writ of Certiorari Mandamus to call for the records
http://www.judis.nic.in1/15
W.P.(MD).No.15187 of 2014
and MP(MD).No.1 of 2014
relating the termination of the petitioner issued by the first
respondent in his proceedings in TNSTC/Kumbakonam/Trichy/D/
6327/2007, dated 10.08.2011, quashing the dismissal from service
and directing the respondents to provide all terminal benefits by
treating the petitioner as to have been in service from the date of
his retirement in the same salary with usual increments and all
backwages and pension, adjusting the dues payable by the
petitioner to the fourth respondent.
For Petitioner : Mr.S.K.Mani
For R1, R2 & R4 : Mr.D.Sivaraman
Standing Counsel
For R3 : Mr.D.Muruganandam
Additional Government Pleader
ORDER
(The case has been heard through video conference) The petitioner, who is a retired driver in the Government Transport Corporation, has filed this Writ Petition to quash the dismissal order passed by the first respondent and for mandamus directing the respondents to provide all terminal benefits from the date of his retirement in the same salary with all increments and all back wages and pension after deducting any amount due to the department.
http://www.judis.nic.in2/15 W.P.(MD).No.15187 of 2014 and MP(MD).No.1 of 2014
2.The learned counsel appearing for the petitioner would submit that the petitioner was working as a driver in the Transport Corporation, due to some illness, he could not report duty between 06.03.2007 to 02.06.2007. Resulted in suspension and the enquiry was conducted. During the enquiry, the petitioner has stated that he has suffered from partial paralysis and he was taken treatment in private hospital and subsequently, for better treatment he was shifted to the Government Hospital. He would further contend that the case of the petitioner was not accepted and thereafter, he was dismissed from the service. Hence, the petitioner has filed the present writ petition before this court under Article 226 of the Constitution of India and seeks the benefits under Section 47 of the Persons With Disabilities (equal opportunism protection of right and full participation) Act, 1995.
3.The service matrix of the writ petitioner are hereunder:
(a)The writ petitioner working as a driver was issued with a charge memo dated 06.06.2007, leveling the charge that he absented himself from duty from 06.03.2007 to 02.06.2007 without any prior intimation or permission. The charge memo dated 06.06.2007 was served through RPAD with a direction to the writ http://www.judis.nic.in3/15 W.P.(MD).No.15187 of 2014 and MP(MD).No.1 of 2014 petitioner to offer his explanation and thereafter, petitioner has received the charge memo and has submitted his explanation dated 11.06.2007 to the charge memo. Since the explanation was considered by the second respondent and the same was found not satisfactory, the respondent has ordered to conduct a domestic enquiry.
(b)One Mr.M.Dharamalingam, learned Advocate was appointed as an Enquiry Officer and the domestic enquiry was conducted on 02.08.2007, in which, the petitioner was given all the opportunities and he has also effectively participated in the enquiry. The enquiry Officer has submitted his finding on 16.02.2008 by stating that the charges leveled against the petitioner were proved.
(c)The first respondent by its letter dated 23.02.2008 has furnished a copy of enquiry findings by RPAD and called for the explanation on the enquiry findings. The petitioner has received the same, submitted his explanation on the enquiry findings.
(d)The explanation considered by the second respondent was found not satisfactory. The management after an independent analysis of the findings of the enquiry officer as well as enquiry proceedings, came to the independent conclusion that the charges held to have been proved by the enquiry officer against the http://www.judis.nic.in4/15 W.P.(MD).No.15187 of 2014 and MP(MD).No.1 of 2014 petitioner were proved to their satisfaction also.
(e)They have accepted the enquiry findings in all aspects. The past record of service of the petitioner was taken note of, wherein it was found that the petitioner was punished for various misconducts on 12 occasions and out of which, 4 punishments were for the charge of unauthorized absenteeism. The first respondent provisionally came to the conclusion to dismiss the service of the petitioner.
(f)A second show cause notice dated 28.04.2008 was sent to the petitioner through RPAD and the petitioner has received the same and has submitted his explanation on the enquiry findings. The explanation was considered by the second respondent and the same was found not satisfactory. As there was no valid reason to modify or cancel the proposed punishment. Consequently the petitioner was dismissed by an order dated 10.08.2011.
4.Heard Mr.S.K.Mani, learned counsel appearing the petitioner and Mr.D.Sivaraman, learned Standing Counsel appearing for the respondents 1, 2 & 4 and Mr.D.Muruganandam, learned Additional Government Pleader appearing for the third respondent and also perused the copy of the enquiry report and the list of misconduct http://www.judis.nic.in5/15 W.P.(MD).No.15187 of 2014 and MP(MD).No.1 of 2014 against the petitioner [on 12 occasions] and also four punishments awarded for unauthorized absent.
5.It appears from the typed set of papers that as there was a dispute pending, an approval application in AP.No.285/2011 was filed before the Joint Commissioner of Labour, Chennai, seeking approval on the dismissal order passed by the second respondent and the same was granted on 22.02.2005.
6.The sum and substance is that the learned counsel appearing for the petitioner would rely upon the Rule 47 of the Persons With Disabilities (Equal Opportunism Protection of right and full Participation) Act, 1995 and sought for the direction for alternative employment and for payment of salary and also relied upon the decision reported in 2013(7) SCC 243 – (Anil Kumar Mahajan Vs. Union of India through Secretary, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training, New Delhi and others).
7.Moreover, the learned counsel for the petitioner would contend that the period of absence of the writ petitioner is covered http://www.judis.nic.in6/15 W.P.(MD).No.15187 of 2014 and MP(MD).No.1 of 2014 under the enquiry partial disability and hence, the writ petitioner is entitled to the benefit under the PWD Act.
8.Per contra, the learned counsel for the respondents would contend that for the proved mis-conduct punishment was inflicted and the same was not under Section 2(A) of the Industrial Disputes Act, and therefore, the Writ Petition is not maintainable. He would submit that the decision reported in 2004 (3) CTC 1 – (P.Pitchumani, etc., Vs. The Management of Sri Chakra Tyres Ltd., rep. By its Managing Director, 10, Jawahar Road, Post Box No. 81, Madurai- 2), the Hon'ble Supreme Court has held as follows:
(i)Only such violations under Industrial Disputes Act which involve public duties are amenable to writ jurisdiction under Article 226 of the Constitution of India;
(ii)dismissals, transfers and matter concerning service conditions of employees governed by the Industrial Disputes Act have to be adjudicated by fora created under the said Statute and not otherwise
(iii)disputes relating to matters not governed by Industrial Disputes Act have to be resolved only by Common Law Courts;
(iv)transfers effected by private employers do not http://www.judis.nic.in7/15 W.P.(MD).No.15187 of 2014 and MP(MD).No.1 of 2014 involve public duties and involve disputed questions of fact and they should be resolved only before fora under Industrial Disputes Act;
(v)Liberty given to employees of such private employers to seek reference under provisions of Industrial Disputes Act;
(vi)Directions given to Labour Court or Industrial Tribunal to dispose of matters within specified time frame
(vii)employees have been given liberty to join at transferred places and in respect of those employees how were dismissed from service for not obeying orders of Transfer were given week's time to join at their transferred places and if such employees join at transferred places dismissal orders would stand set aside automatically;
(viii)the respondents-managements shall sympathetically consider the payments of wages/salaries to the appellants/petitioners-employees so as to maintain the industrial peace and harmony.
He would further contend that since the statutory remedy has been proved under Section 2(A) of the Industrial Disputes Act, the Writ petition is not maintainable and further contended that for the proved conduct of habitual offender for unauthorized absence, removal from service is a proportionate to the charges proved, http://www.judis.nic.in8/15 W.P.(MD).No.15187 of 2014 and MP(MD).No.1 of 2014 relied upon the decision reported in 2008(1) SCC 224 – (L & T KOMATSU LTD Vs. N.UDAYAKUMAR), the Hon'ble Supreme Court has held as follows:
“Labour Law – Misconduct – Absenteeism - Nature of, and appropriate punishment therefor- Habitual absenteeism, held, amounts to gross violation of discipline – Where the workman, who had been in the past found guilty of unauthorised absenteeism several times (15 times in this case), was in a properly conducted departmental enquiry once again found guilty of unauthorised absence for a long period (105 days in this case), held, his consequential dismissal from service ought not to have been treated to be harsh and interfered with by Labour Court/High Court – Case law on scope of exercise of power under S.11-A, Industrial Disputes Act, 1947, discussed – Industrial Disputes Act, 1947 – S.11-A and S.10(4-A) (as in force in Karnataka)” Further, in the decision reported in 2004 (7) SCC 574 – (DELHI TRANSPORT CORPORATION Vs. SARDAR SINGH), wherein, the Hon'ble Supreme Court has held as follows:
“whether absence without leave is habitual or continuous absence from the duty without sanctioned leave for long prima facie amounts to “habitual http://www.judis.nic.in9/15 W.P.(MD).No.15187 of 2014 and MP(MD).No.1 of 2014 negligence of duties and lack of interest in ... work” which constitutes a misconduct under relevant Standing Order of the appellant Corporation – Burden lies on the employee concerned to prove otherwise by placing relevant material on record.”
9.On a perusal of the records it is seen that the Joint Commissioner of Labour, Chennai, has approved the application for approval filed in AP.No. 285 of 2011 on 22.02.2005 and admittedly, the petitioner has not challenged the approval order before the Labour Court. It is also appears that the petitioner has effectively participated in the domestic enquiry and when that being the case, in view of the regular statutory appeal has been provided under Section 2(A) of the Industrial Disputes Act, he is not availed the remedy and hence, he has preferred this writ petition in the year 2014 after long gap. Impugned order was passed on 10.08.2011 writ petition is filed in the year 2014, in other words, the writ petitioner has challenged the order of dismissal from service after three years of passing of the impugned order. The writ petition is also suffer from delay and latches.
10.In the entire service, it appears that the petitioner is http://www.judis.nic.in10/15 W.P.(MD).No.15187 of 2014 and MP(MD).No.1 of 2014 absent for 1618 days and he was given punishment at 12 incidents and out of which, four times he was awarded punishment for absenteeism and hence, this Court finds that the writ petitioner is habitual absentee and chronic in nature.
11.The learned counsel Mr.S.K.Mani for the petitioner would seek the benefit under Section 47 of the Persons with Disabilities Act, 1955, (PWD Act in short).
12.Per contra, the learned counsel for the respondent/Transport corporation would contend that the alleged illness does not fall within the ambit of the PWD Act. As per the petitioner version he was medically invalid due to the afflictions of hemiperisis (left) and unless the petitioner appear before the Medical Board and only if the medical certificates were produced before the Medical Board, the plea of alternate employment can be considered.
13.Admittedly, during the enquiry, the petitioner has not filed any documents from the medical board to show that he is suffering http://www.judis.nic.in11/15 W.P.(MD).No.15187 of 2014 and MP(MD).No.1 of 2014 from disability as mentioned in the PWD Act and had he taken such stand, it could be appropriate for the respondent management to refer the matter to ascertain the eligibility. The dismissal order passed in the year 2011, the writ petitioner has preferred this writ petition during year 2014, seeking alternate employment on the ground on disability under the PWD Act. Now almost nine years are over.
14.Admittedly, whether the person suffered disability and falls under any one of the category as mentioned in Section 47 of the PWD Act, has to be ascertained with reference to the date of the absent. Now due to the passage of the time, the same cannot be tested. No such plea of disability was taken by the writ petitioner immediately after dismissal of the order also assumes significance and he has come up with this writ petition after three years. Hence, this Court finds that such a plea was taken by the petitioner only to get some benefits and the plea of the petitioner cannot be considered at this distance of time. Accordingly, this Court has no other option to reject the plea due to the passage of decade of years from the date of the enquiry and hence, the said contention raised by the learned counsel for the petitioner stands rejected. http://www.judis.nic.in12/15 W.P.(MD).No.15187 of 2014 and MP(MD).No.1 of 2014
15.Accordingly, this writ petition stands dismissed with the above observations. No costs. Consequently, connected Miscellaneous Petition is also closed.
18.01.2021
Index : Yes
Internet : Yes
dua
To
1.The Managing Director,
Tamil Nadu State Transports Corporation Kumbakonam Limited, New Railway Station Road, Kumbakonam.
2.The General Manager, Tamil Nadu State Transports Corporation Kumbakonam Limited, Tiruchirapalli.
3.The Sub Registrar, Arbitrator, having office at Employees Co-operative Thrift and Credit Society, Tiruchirapalli-1, represented by its Secretary.
4.The Secretary, Y.T.Tamil Nadu State Transport Corporation, (Kumbakonam Division), Employeees Co-operative Thrift and Credit Society, Tiruchirapalli-1.
http://www.judis.nic.in13/15 W.P.(MD).No.15187 of 2014 and MP(MD).No.1 of 2014 RMT.TEEKAA RAMAN. J.
dua Pre-Delivery Judgment in W.P.(MD).No.15187 of 2014 and MP(MD).No.1 fo 2014 18.01.2021 http://www.judis.nic.in14/15 W.P.(MD).No.15187 of 2014 and MP(MD).No.1 of 2014 http://www.judis.nic.in15/15