Madras High Court
N. Nandagopal vs The Deputy Secretary To The Government on 12 September, 2022
Author: Abdul Quddhose
Bench: Abdul Quddhose
W.P. No.8344 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 12.09.2022
CORAM:
THE HON'BLE MR. JUSTICE ABDUL QUDDHOSE
W.P. No.8344 of 2018
N. Nandagopal ...Petitioner
vs.
1. The Deputy Secretary to the Government,
Labour and Employment Department,
Govt. of Tamilnadu,
Secretariat,
Chennai – 600 009.
2. The Management,
Tamil Nadu Transport Corporation
(Vizhupuram) Ltd.,
Kanchipuram Region,
Chennai – Bangaluru National High Way,
Chettiyarpatti,
Kanchipuram – 631 552. ...Respondents
Prayer : Writ Petition filed under Article 226 of the Constitution of
India, to issue a Writ of Certiorarified Mandamus, calling for records of
the 1st respondent letter No.13816/A2/2017-2, dated 04.10.17 and quash
the same and consequently to direct the 1st respondent to refer the period
of suspension for 21 days treated as leave and deducted the same from
the leave in credit of the petitioner is justifiable.
For petitioner : Mr.S.T. Vardarajulu
For respondents : Mr.T. Arunkumar,
Addl. Govt. Pleader for R1
Mr.M.Aswin for R2 (Transport)
https://www.mhc.tn.gov.in/judis
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W.P. No.8344 of 2018
ORDER
This writ petition has been filed challenging the impugned order dated 04.10.2017 passed by the 1st respondent declining to refer a part of the dispute to the Labour Court viz., “the suspension period of the petitioner was wrongly treated as leave period”.
2. The 2nd respondent issued many Memos levelling certain charges against E. Kovalan, a Tradesman Staff and an active member of the petitioner's Union. According to the 2nd respondent, E. Kovalan, did not perform weekly electrical maintenance work for 18 vehicles from 29.03.2010 to 30.03.2010 and he failed to attend to the same. It is also alleged by the 2nd respondent that there was no petroleum gel in the battery of the Bus bearing Registration No.TN32-N-2080, which was maintained by E.Kovalan. The employee was suspended and charge sheeted on 05.04.2010. An explanation was called for from the employee, who submitted his explanation on 08.04.2010. After 21 days, E. Kovalan, the employee was released from suspension on 26.04.2010. Enquiry was conducted and the 2nd respondent based on the enquiry report ordered postponement of the annual increment for three months without cumulative effect along with the period of suspension treated as leave and leave on credit of E. Kovalan was debited from his Leave https://www.mhc.tn.gov.in/judis 2/10 W.P. No.8344 of 2018 account. Against this punishment, the petitioner Union raised a dispute before the Assistant Commissioner of Labour (Conciliation), by a petition dated 21.12.2012 under Section 2(k) of Industrial Disputes Act, 1947.
3. According to the petitioner Union, Conciliation was held on various dates. The Assistant Commissioner of Labour (Conciliation), Irungakattukottai sent a failure report under Sub Section 4 of Section 12 of the Industrial Disputes Act 1947 to the 1st respondent on 06.12.2013. Two issues were raised in the dispute and the Assistant Commissioner of Labour (Conciliation), Irungakattukottai also gave failure report on those two issues. However, the 1st respondent referred only one part of the dispute (i.e. postponement of annual increment for three months without cumulative effect) to the Labour Court and declined to refer the other part (i.e., the suspension period treated as leave and leave on credit) for adjudication. E. Kovalan, the employee made a representation to the 1 st respondent on 06.07.2017 and demanded for reference of the left out portion of the dispute (i.e., the suspension period treated as leave) for reference to the Labour Court for adjudication. The 1 st respondent sent a reply dated 04.10.2017 informing the employee (E. Kovalan) that the period of suspension of 21 days was correctly treated as leave and https://www.mhc.tn.gov.in/judis 3/10 W.P. No.8344 of 2018 correctly deducted the same from his leave account, According to them, it cannot be treated as double jeopardy and therefore, the reference to the to the Labour Court for adjudication will not arise. According to the petitioner, due to the suspension, there is a monetary loss to the employee to the tune of Rs.20,000/-
4. A counter affidavit has been filed by the 1st respondent denying the allegations of the petitioner. With regard to the issue raised for treating the suspension period as leave, it is submitted by them that the conciliation authority by taking note of payment of 50% of basic pay during suspension period and disbursement of remaining pay by the 2nd respondent Management to the employee has not made any recommendation. However, the Conciliation Authority made its recommendation for adjudication before the Industrial Tribunal regarding the second issue of postponement of annual increments for three months without cumulative effect. Infurtherance of which, the 1st respondent has issued G.O. (D) No.471, Labour and Employment (A2) Department, dated 14.10.2014 referring the dispute regarding the punishment postponing the annual increments, for adjudication. According to the 1st respondent, the grounds raised in the writ petition by the petitioner are all vexatious and thereby the same deserves to be rejected in limine. https://www.mhc.tn.gov.in/judis 4/10 W.P. No.8344 of 2018
5. The learned counsel for the petitioner has relied upon the following authorities in support of his contentions that the 1st respondent has arbitrarily and illegally not referred the second part of the dispute viz., Suspension period treated as leave at his credit for adjudication.
a) Shaw Wallace & Co. Ltd., vs. State of Tamil Nadu represented by the Commissioner and Secretary, Labour Dept., and other reported in 1987 1 LLJ 177
b)Telco Convoy Drivers Mazdoor Sangh and another vs. State of Bihar and others reported in 1989 (002) – LLJ – 0558- SC
6. The learned counsel for the petitioner after referring to the aforementioned authorities would submit that since the respondents have erroneously treated suspension period as a leave period, the 1st respondent ought to have referred the second part of the dispute also for adjudication. According to the learned counsel for the petitioner, the reference sought for does not arise out of a frivolous claim and therefore, applying the ratio laid down in the aforesaid decisions, the 1st respondent ought to have referred the dispute to adjudication.
7. Per contra, the learned Additional Government Pleader appearing for the 1st respondent would submit that being a frivolous claim in view of the fact that only after taking note of the payment of https://www.mhc.tn.gov.in/judis 5/10 W.P. No.8344 of 2018 50% of basic pay during suspension period and disbursing the remaining pay by the 2nd respondent Management to the employee, the 1st respondent took a conscious decision not to refer the second part of the dispute to adjudication. He would submit that having taken a judicious decision, the principles laid down by the Hon'ble Supreme Court in Shaw Wallace's, referred to supra, will apply to the case of the 1 st respondent for not referring the dispute to adjudication.
8. He also relied upon the judgment of a learned single Judge of this Court dated 26.04.2011 in W.P. No.45446 of 2006 in the case of Rajiv Gandhi ONGC (CON) Workers Welfare Association vs. Government of India, who has followed the Shaw Wallace's decision of the Hon'ble Supreme Court referred to supra.
9. The learned Single Judge after considering various decisions including the Shaw Wallace's case, relied upon by the learned counsel for the petitioner has enumerated the following principles for making a reference to adjudication under Section 10(1) of the Industrial Disputes Act :-
1. The Government would normally refer the dispute for adjudication.
2. The Government may refuse to make reference, if
a) the claim is very stale.
b) the claim is opposed to the provisions of the Act;
c) the claim is inconsistent with any agreement between the https://www.mhc.tn.gov.in/judis 6/10 W.P. No.8344 of 2018 parties;
d) the claim is patently frivolous;
e) the impact of the claim on the general relations between the employer and the employee in the region is likely to be adverse
f) the person concerned is not a workman as defined by the Act;
3) The Government should not act on irrelevant and extraneous consideration;
4) The Government should act honestly and bonafide;
5) The Government should not embark or adjudication of the dispute and
6) The Government should not refuse reference on the ground that domestic enquiry was fairly and properly held and punishment awarded was appropriate”.
10. The respondents have contended that the claim made by the petitioner with regard to the second part of the dispute viz., suspension period treated as leave period is opposed to the provisions of the Industrial Disputes Act.
11. Admittedly, two issues were raised by the petitioner in the dispute before the Assistant Commissioner of Labour (Conciliation), who has submitted a failure report to the 1st respondent on both the issues.
12. The 1st respondent has referred one part of the dispute i.e. postponement of annual increment for three months without cumulative effect) for adjudication and declined to refer the other part (i.e., the suspension period treated as leave for adjudication). The reasons given by the 1st respondent for not referring the second part of the dispute is that the employee was already paid 50% of basic pay during suspension https://www.mhc.tn.gov.in/judis 7/10 W.P. No.8344 of 2018 period.
13. It is also brought to the notice of this Court by the learned counsel for the 2nd respondent / Management that 15 days period was treated as Earned Leave and the said amount was also credited to the employee's account in the month of September 2011. Having taken a judicious decision, this Court cannot find fault with the 1st respondent for not referring the second part of the dispute for adjudication.
14. It is settled law that reference to a dispute for adjudication under Section 10(1) of the Industrial Disputes Act, 1947, by the Government concerned cannot be claimed as a matter of right. Since judicious reasons have been given by the 1st respondent for not referring the second part of the dispute for adjudication which cannot be treated to be unreasonable and contrary to law, this Court is of the considered view that there is no merit in this writ petition.
15. In the result , the writ petition stands dismissed. No costs.
12.09.2022 Index: Yes/No Internet: Yes/No Speaking Order/Non-Speaking Order vsi2 https://www.mhc.tn.gov.in/judis 8/10 W.P. No.8344 of 2018 To
1. The Deputy Secretary to the Government, Labour and Employment Department, Govt. of Tamilnadu, Secretariat, Chennai – 600 009.
2. The Management, Tamil Nadu Transport Corporation (Vizhupuram) Ltd., Kanchipuram Region, Chennai – Bangaluru National High Way, Chettiyarpatti, Kanchipuram – 631 552.
https://www.mhc.tn.gov.in/judis 9/10 W.P. No.8344 of 2018 ABDUL QUDDHOSE, J.
vsi2 W.P. No.8344 of 2018 12.09.2022 https://www.mhc.tn.gov.in/judis 10/10