Madras High Court
U.Joseph vs The Managing Director on 3 February, 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 03.02.2017
CORAM
THE HON?BLE MR.JUSTICE S.VAIDYANATHAN
W.P.(MD) Nos.6902 of 2014 and 23615 of 2016
U.Joseph ... Petitioner in both petitions
-vs-
1. The Managing Director,
Tamil Nadu State Transport
Corporation (Kumbakonam) Ltd.,
Kumbakonam, Thanjavur District.
2. The General Manager,
The Tamil Nadu State Transport
Corporation (Kumbakonam) Ltd.,
Pudukkottai Region, Pudukkottai.
3. The State of Tamil Nadu,
Rep. by its Secretary to Government,
Transport Department,
Fort St.George, Chennai-600 009.
... Respondents in W.P.(MD)6902/14
1. The Tamil Nadu State Transport
Corporation (Kumbakonam) Ltd.,
Rep. by its Managing Director,
Kumbakonam.
2. The General Manager,
The Tamil Nadu State Transport
Corporation (Kumbakonam) Ltd.,
Pudukkottai Region, Pudukkottai.
3. The Administrator,
Tamil Nadu State Transport
Corporation Pension Fund Trust,
Thiruvalluvar House, Pallavan Salai,
Chennai-600 002. ... Respondents in W.P.(MD) 23615/2016
Prayer in W.P.(MD) 6902/2014: Writ Petition filed under Article 226 of the
Constitution of India for issuance of a writ of Certiorarified Mandamus,
calling for the records relating to the order passed by the 2nd respondent
dated 13.02.2012 in his reference Tha.A.Po.Ka./TAS/D3/1087AA and the order
dated 28.03.2012 in his reference No.Tha.A.Po.Ka./KUMBA/PUMA/E2/155 and quash
the same and to direct the respondents to permit the petitioner to continue
as a Driver in the Transport Corporation till the date of superannuation on
31.05.2015 and to pay back wages for the period from 01.04.2012 to till date
and to continue to pay salary every month.
Prayer in W.P.(MD) 23615/2016: Writ Petition filed under Article 226 of the
Constitution of India for issuance of a writ of Declaration, declaring the
action of the respondents in imposing a recovery of Rs.98,000/- on the
petitioner towards ?uneffected increment cut? and recovering the said amount
from his terminal benefits as illegal, arbitrary and consequently direct the
respondents to settle to pay him all the terminal benefits payable to him
including gratuity, commuted value of pension, earned leave salary, social
security scheme amount and refund of contribution made towards medical,
engineering, polytechnic colleges and Institute of Road Transport and his
monthly pension without any recovery, but with interest at the rate of 18%
per annum payable to the petitioner from his date of retirement to till the
date of actual payment.
!For Petitioner : Mr.Ajay Ghosh
For. Mr.A.Rahul
^For Respondents : Mr.D.Sivaraman and
: Mr.A.P.Muthupandian (for Administrator)
:COMMON ORDER
The writ petition in W.P.(MD) No.6902 of 2014 has been filed, seeking to quash the impugned orders dated 13.02.2012 & 28.03.2012 passed by the 2nd respondent in Tha.A.Po.Ka./TAS/D3/1087AA and Tha.A.Po.Ka./KUMBA/PUMA/E2/155 respectively, by which, the petitioner was imposed with stoppage of increment for three years for the misconduct committed by him and vide order dated 28.03.2012, the petitioner's voluntary retirement was accepted and he was allowed to go on VRS with effect from 31.03.2012. The petitioner also sought a direction to the respondents to permit the petitioner to continue as a Driver in the Transport Corporation till the date of superannuation on 31.05.2015 and to pay back wages for the period from 01.04.2012 to till date and to continue to pay salary every month.
2. In W.P.(MD) No.23615 of 2016, the petitioner sought to declare the action of the respondents in imposing a recovery of Rs.98,000/- on the petitioner towards ?uneffected increment cut? and recovering the said amount from his terminal benefits as illegal and arbitrary. The petitioner also sought a direction to the respondents to settle all the terminal benefits payable to him, including gratuity, commuted value of pension, earned leave salary, social security scheme amount and refund of contribution made towards medical, engineering, polytechnic colleges and Institute of Road Transport and his monthly pension without any recovery, but with interest at the rate of 18% per annum from the date of his retirement till the date of actual payment.
3. For the sake of brevity, the facts are being taken from W.P.(MD) No.23615 of 2016.
4. The case of the petitioner is that he was not issued with any order of recovery and was verbally informed that the respondents are going to recover a sum of Rs.98,000/- towards non-implemented punishment of increment cut. According to the petitioner, no terminal benefits were so far extended to him and therefore, the respondents are liable to pay the terminal benefits with interest at the rate of 18% p.a. from the date of his superannuation. He further submitted that he joined the 1st respondent Corporation as Driver on 01.02.1987 and he was issued with a charge memo dated 18.07.2011 for his negligent driving, which resulted in an accident with a mini lorry and a person, who travelled in the lorry died; that a criminal case has been registered against him and the same was closed as mistake of fact; that accepting the same, learned Magistrate also closed the case. He also submitted that he was not given sufficient opportunity in the domestic enquiry and without proper appreciation, the enquiry officer held that charges were proved and the 2nd respondent imposed the punishment of stoppage of increment for three years with cumulative effect; that thereafter, he made an application on 29.11.2011 for voluntary retirement and the same was accepted by an order dated 28.03.2012 and he was allowed to retire in the same post on 31.03.2012.
4.1. It is stated that prior to acceptance of his voluntary retirement, the petitioner was imposed with the punishment for his misconduct and departmental proceedings were also initiated after a period of three years on 28.03.2012. According to the petitioner, once he was allowed to go on VRS, the punishment imposed on 13.02.2012 cannot be enforced and the verbal demand of payment of Rs.98,000/- toward non-implemented increment cut is illegal and had the respondents informed the petitioner that they are going to impose some punishment, he would have continued in service; that even though he attained superannuation on 31.05.2015, his terminal benefits have not yet been paid and that there is no certified standing order applicable to the present case and only model standing order is applicable, in which there is no provision to make such recoveries.
5. The respondents would contend that the action of the respondents in recovering a sum of Rs.90003/- from his terminal benefits towards non- implemented punishment of increment cut is perfectly justified and that the petitioner had involved in several misconducts and also suffered three punishments, including the one mentioned by the petitioner; that the respondent Corporation is governed by Common Service Rules and Certified Standing Order, namely, Standing Orders for the employees of the Cholan Roadways Corporation Limited, Kumbakonam as certified by the Appellate Authority under Industrial Employment (Standing Orders) Act, 1946, which came into effect from 30.11.1976; that the Common Service Rules and the Certified Standing Orders have provisions for taking disciplinary action against employees for misconducts and punishments that could be imposed for such misconducts. It is stated by the respondents that the petitioner has not challenged the Service Rules or Standing Orders and Rule No.25(1)(iv)(b), which empowers the Management to make recovery on the punishment imposed. It is further stated that in the judgment relied upon by the petitioner dated 07.02.2013 passed in W.P.(MD) No.11697 of 2012, this Court has considered various judgments and distinguished the same, holding that the rule position was not considered in those decisions and upheld the powers of the Transport Corporations to make recovery of amount equivalent to that of penalty. Thus, it is pleaded by the respondents that the action of the respondents in deducing the amount toward non-implemented increment cut is perfectly valid and the same need not be interfered with.
6. Heard the learned counsel on either side.
7. Admittedly, the petitioner has committed a misconduct, for which, a detailed enquiry has been conducted and final orders were passed on 13.02.2012, imposing the punishment of stoppage of increment for three years. The petitioner, during the pendency of enquiry, submitted an application for voluntary retirement on 29.11.2011 along with the consent letter of the family members and his request for voluntary retirement was accepted on 28.03.2012 after imposition of punishment for his misconduct. Therefore, the respondents, while permitting the petitioner to go on VRS, decided to adjust the monetary value equivalent to the amount of increment in order to implement the order of punishment in terms of the Standing Orders. The petitioner, as an after-thought, submitted another representation dated 22.06.2012 for withdrawal of his application earlier forwarded for VRS, stating that had the proposal for recovery been told in advance, he would not have pursued with the VRS. There was no compulsion to the petitioner to take such a decision and moreover, nothing prevented the petitioner in asking the respondents whether they would deduct any amount towards punishment imposed, as the punishment was imposed in the month of February, 2012 and his VRS was accepted only on 28.03.2012 and therefore, there was also a delay in approaching the respondents. It is unfortunate that the petitioner, having committed serious misconducts and suffered punishment, attempts to escape from his errors and the employees, like the petitioner are more concerned about the rights rather than the duties. If the petitioner's VRS application is allowed to be cancelled and the petitioner is allowed to get the monetary equivalent, it will certainly give a wrong signal to other workmen.
8. With regard to imposition of punishment, the petitioner is a workman under the Industrial Disputes Act, 1947 and if the petitioner is really aggrieved, he ought to have raised disputed through Union and get the punishment order set aside. Writ petition is not an alternative remedy and this Court, under Article 226 of the Constitution of India cannot re- appreciate the evidence and come to a different conclusion. In the case of State of Andhra Pradesh v. S.Sree Rama Rao, reported in AIR 1963 SC 1723, the Honble Apex Court had held as under:
?The departmental authorities are the sole judges of facts, and if there be some legally admissible evidence, on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a Writ under Article 226 of the Constitution, if the enquiry has otherwise been properly held. Here, in the instant case, no document which has been created behind the back of the applicant, has been relied upon by the Enquiry officer, and all the documents relied upon were the creation of the applicant himself, under his own handwriting. This aspect has been appreciated by the Honble High Court also while setting aside his acquittal by the trial Court. Therefore, it cannot be held by any stretch of imagination that the findings of the Enquiry officer, Disciplinary Authority and the Appellate Authority, are not based on legally admissible evidence, and that no reasonable person could have arrived at on those findings on the basis of the material available. It is not as if any deposition of a witness had been recorded by the Enquiry Officer in the absence of the delinquent public servant, who is the applicant before us, or a copy thereof has not been given to him or a witness has been produced, and an opportunity has not been given to him, to cross examine that witness.
9. In yet another judgment, a Three-Judges Bench of the Honble Apex Court in the case of B.C. Chaturvedi vs. Union of India and others, reported in AIR 1996 SC 484 has been pleased to hold as follows:-
?12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in eye of the Court. When an inquiry is conducted on charges of a misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice be complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent office is guilty of the charge. The Court/Tribunal on its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at the own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry of where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.?
10. Therefore, this Court is of the view that the punishment imposed by the Management is proportionate to the gravity of the misconduct committed by the petitioner and it does not require any interference by this Court.
11. The next issue is as to whether having allowed the petitioner to go on VRS, the Management is justified in recovering amount under the head non- implemented punishment of increment cut from the petitioner. It is not in dispute that the Service Rules or Standings Orders have not been challenged. The respondents relied on Clause 25 of the Certified Standing Orders applicable to the respondent corporation, which is reproduced hereunder:
?25. Punishment for Misconduct:
?(1)(iv)(b) ? Recovery from pay to the extent necessary of the monetary value equivalent to the amount of increment ordered to be withheld, where such an order cannot be given effect to.?
12. According to the petitioner, the respondents have already imposed punishment under Clause 25 (iii) and therefore, they cannot again invoke Clause 25(iv)(b) to recover the amount. Though the argument of the petitioner appears to be sound, when seen in depth, it has no logic, simply because, if a person is imposed with punishment after the domestic enquiry for some misconduct, it is open to him to challenge the same by raising dispute through Union and admittedly, the petitioner has not done so. Where there is an imposition of punishment on an employee, who is going to retire from service shortly, certainly, the Management will have to make recovery, otherwise, the guilty person would escape without any punishment. The punishment mentioned under Clause 25 (iii) and (iv) is interchangeable and the Management will have to first state the punishment as per Clause 25 (iii) and thereafter, for want of recovery period, they have to invoke Clause 25(iv), but in this case, it is Clause 25(1)(iv)(b). In case, an employee dies prior to issuance of order of stoppage of increment, certainly, terminal benefits have to be given to the family members and only the monetary benefits need to be adjusted and paid. The purpose of Standing Orders is to give effect to the clause in the Standing Orders, including the punishment, where charges are proved and not otherwise.
13. The contention of the petitioner that Common Service Rules cannot be applicable to the facts of this case is perfectly correct, as the reading of Service Rules / Discipline & Appeal Rules [Rule 4(f)] is very clear that it will not apply to a workman, as defined under the Industrial Disputes Act, 1947. Since the petitioner is governed by the Standing Orders, the Service Rules / Discipline & Appeal Rules for imposing minor or major penalties is not applicable to the facts of this case. Though much reliance is placed on Rule 4 (e), as Service Rules / Discipline & Appeal Rules does not apply to this case, there is no need to harp upon this point. The further contention of the petitioner is that the word ?pay? used under Clause 25(1)(iv)(b) denotes only monthly pay and the recovery can be effected only from the wages. Though the said argument looks attractive at first blush, it is not so, as it is to be remembered that the word ?pay? includes wages, money due to the employee out of the services rendered, except the one claimed and protected under the provisions of Payment of Gratuity Act, 1972. The punishment imposed under Clause 25(1) (iii) and 25 (1)(iv)(b) are independent to each other and therefore, the contention that Clause 25(1)(iii) has been modified to Clause 25(1)(iv)(b) cannot be accepted and the period of punishment is to recover the amount for the proved misconduct.
14. In the decision relied upon by the respondents in the case of P.Ramasamy vs. The Tamil Nadu State Transport Corporation (Coimbatore, Ltd., Coimbatore and others [W.P.11697 of 2012] decided on 07.02.2013, it has been held that by G.O.Ms.No.1373, Transport Department dated 02.12.1985, common service rules are applicable as per the decision of the Board of Directors in their meeting held on 19.04.1986. However, this judgment is not applicable to the present case and even assuming for a moment that the said G.O. G.O.Ms.No.1373, Transport Department dated 02.12.1985 is contrary to the Certified Standing Orders, the Certified Standing Orders would prevail and the management is empowered to initiate any action in terms of the Certified Standing Orders. As rightly pointed out by the respondents, depending upon the clause stipulated in the Standing Orders, a case needs to be considered.
15. Even though it has been contended by the respondents that the relief sought in this writ petition is not maintainable, this Court is unable to accept the said contention, as the Management has taken a decision to recover the amount and the respondent Corporation is a State within the meaning of Article 12 of the Constitution of India and the employees working under the respondent Corporation can seek the action of the Management to be declared as bad and null and void. But, however, in this case, there is no illegality in the decision taken by the Management to recover the amount from the petitioner.
16. The judgments relied upon by the petitioner are not applicable to the facts of this case, as those judgments are covered by a different set of Standing Orders and in any event, from the judgment rendered by my brother Justice K.Chandru (referred to supra), it is clear on this aspect. The contention of the petitioner that other employees, who were similarly placed, were already granted benefits, cannot be accepted, as two wrongs will not make a thing right.
17. In fine, both these Writ Petitions fail and the same are dismissed. The Management is entitled to deduct the amount from the terminal benefits, except from the amounts like gratuity, which are protected by Statute like Payment of Gratuity Act etc. The Management is directed to release the terminal benefits after adjusting the amount imposed towards non-implemented punishment of increment cut within a period of two months from the date of receipt of a copy of this order and the gratuity shall be released in six equal monthly instalments. Normally, this Court used to direct the Transport Corporation to pay the terminal benefits in twelve equal monthly instalments and as a special case, the said period is reduced in this case to six equal monthly instalments.
18. It is made clear that failure on the part of the respondents in releasing any of the amount stated supra shall carry interest at the rate of 10% per annum from the due date and and the loss can be recovered from the Secretary to Government, Transport Department, by applying the principles laid down in the case of Central Co-operative Consumers' Store Ltd. vs. Labour Court, H.P. at Shimla and another, reported in AIR 1994 SC 23, and his/her properties can also be attached in terms of the judgment of the Hon'ble Division Bench of this Court in the case of A.Sachidanandam, Macneil and Magor Kilburn Group Companies Employees' Union, Chennai vs. S.Srinivasan and others, reported in 2011 (5) LLN 696 (DB) (Mad.). No costs. Consequently, connected miscellaneous petitions are closed.
To:
1. The Managing Director, Tamil Nadu State Transport Corporation (Kumbakonam) Ltd., Kumbakonam, Thanjavur District.
2. The General Manager, The Tamil Nadu State Transport Corporation (Kumbakonam) Ltd., Pudukkottai Region, Pudukkottai.
3. The Administrator, Tamil Nadu State Transport Corporation Pension Fund Trust, Thiruvalluvar House, Pallavan Salai, Chennai-600 002.
.