Madras High Court
Indian Airline Limited vs The Presiding Officer
Author: T.Raja
Bench: T.Raja
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED; 24.09.2012 CORAM; THE HONOURABLE MR.JUSTICE T.RAJA W.P.NO.27999 OF 2004 Indian Airline Limited rep.by its General Manager (P) Airlines House, Meenambakkam Chennai 600 027 .. Petitioner vs 1.The Presiding Officer National Industrial Tribunal 1st Floor, Shram Raksha Bhavan Shivsrusthi Road, Opp.Priyadarshini Off Eastern Express Highway, Sion Mumbai 400 022 2.J.S.Naik(Deceased) H.No.10/684(Old) 25/793 (New) Near Amaravathy Market Amaravathy, Fort Cochin Cochin 682 001 3.Jaru Jesentha Naik, w/o Late J.S.Naik 4.Jaru Syamkumar. S/o late J.S.Naik 5.Jaru Dinakar, s/o Late J.S.Naik 6.Jaru Usha Rani, D/o Late J.S.Naik All are residing at H.No.10/684, (Old) No.25/793 (New) Near Amaravathy market, Amaravathy Fort Cochin, Cochin-682 001 R3 to R6 substituted as LRs in the place of deceased 2nd respondent as per Order dated 24.9.12 by TRJ in WPMP 257/12 in WP 27999/2004 .. Respondents Writ Petition is filed under Article 226 of the Constitution of India praying for issuance of a writ of Certiorari after calling for the concerned records from the 1st respondent National Industrial Tribunal relating to its order dt.14.06.2004 in Approval Application No.NTB-34 of 2001 (arising out of Ref.No.NTB-1 of 1990) and quash the same as illegal, arbitrary, contrary to the Standing Orders of the Writ Petitioner. For petitioner : Mr.K.Srinivasamurthy For respondents : Mr.K.M.Ramesh (for R3 to R6) R1-Tribunal R2-deceased ... O R D E R
The present writ petition is filed by the Indian Airlines Limited, represented by its General Manager (P) Airlines House, Meenambakkam, Chennai-600 027 challenging the correctness of the order passed by the National Industrial Tribunal in its Order dated 14.6.2004 in Approval Application No.NTB-34 of 2001 (arising out of Ref.No.NTB-1 of 1990) to quash the same as illegal, arbitrary and contrary to the Standing Orders governing the petitioner.
2.(i)Mr.K.Srinivasamurthy, learned counsel for the petitioner submitted that the second respondent-Late J.S.Naik who joined as a Loader on 10.08.1983 on probation, after his confirmation on 10.2.1984 as Loader, got promoted as Senior Loader on 10.1.1991. When he was in Calicut Airport on duty as Loader, on 11.9.1995 in the checking counter of the petitioner Airlines at Calicut Airport for IC 993 Calicut to Sharjah flight, the security personnel found an unclaimed brief case with tag carrying seat No.21-C. As the said baggage did not pass through X-ray screening, and in spite of the announcement nobody claimed the baggage, the airport personnel went inside the flight and found that the passenger occupying seat No.21-C did not have the counterfoil of the said baggage tag. Finally, the said brief case containing Rs.1.03 crores was handed over to the customs authorities and the customs authorities who had opened the brief case found that it contained currencies of 26 countries to the value of Rs.1.03 crores.
(ii) Subsequently, on enquiry, the second respondent Late-J.S.Naik, said to have given a statement to the customs authority admitting that he has attempted to load the brief case in question surreptitiously into the flight IC 993 bound to Sharjah. He was arrested by the police at the instance of the customs authorities on 22.9.1995 and remanded to judicial custody. Subsequently, he moved a bail application before the Additional Chief Judicial Magistrate, Economic Offences, Ernakulam.
(iii) The learned counsel for the petitioner argued that though the initial bail application was rejected, subsequently, he was granted bail on condition that he should deposit Rs.1 lakh in cash and execute a bond for Rs.1 lakh with two sureties having solvency certificates for Rs.2 lakhs each and this order was subsequently modified and he was asked to execute a bond for Rs.1 lakh with two solvent sureties having solvency certificates for the like amount. Unfortunately, the second respondent was not able to comply the same. Therefore, he was confined in jail. In the meanwhile, between 23.1.1996 to 23.1.1998 he was detained under COFEPOSA. Therefore, the learned counsel for the petitioner argued before this Court that when the 2nd respondent can be imposed with the punishment of three years imprisonment under Section 135 of the Customs Act, having undergone the imprisonment in jail for more than three years, finally he filed a Criminal M.C.No.5195/1998 before the Hon'ble High Court of Kerala at Ernakulam to quash the proceedings on the ground that he was imprisoned for more than the maximum period of three years sentence awarded on conviction. The Hon'ble High Court of Kerala by its detailed order allowed the Criminal M.C.No.5195/1998 quashing the entire proceedings against the 2nd respondent and he was also directed to be released forthwith if his custody was not required for any other offences.
(iv) The learned counsel for the petitioner by pointing out the two observations made by the Kerala High Court in the said judgment stated that quashing of the proceedings by the Kerala High Court was made only for the reason that the second respondent had completed more than three years of imprisonment. Since the offence that can be sustained against him is only punishment under section 135 of the Customs Act which provides the maximum punishment of imprisonment of three years, the Hon'ble Kerala High Court has rightly quashed the proceedings. Secondly, the argument advanced by the learned counsel for the second respondent before the Hon'ble Kerala High Court also indicated that the second respondent cannot be kept inside the jail more than the maximum period of punishment of imprisonment of three years under Section 135 of the Customs Act. In any event, the Hon'ble High Court of Kerala has, with these two findings, allowed the petition-Crl.M.C.No.5195/1998, immediately thereafter, he was also released from jail on 17.11.1998.
(v) After his release, the petitioner-Indian Airlines Limited, again by passing appropriate order to proceed against him departmentally, again placed him under suspension on 26.11.1998. Thereafter, giving all reasonable opportunities to the 2nd respondent, the Enquiry Officer found him guilty. After the conclusion of the enquiry, the 2nd respondent was also issued with a show cause notice on 30.01.2001/6.2.2001. After receiving the explanation, the order of removal was issued enclosing a cheque for Rs.11,204/- being one month salary awarded on 25.5.2001. On the same day, an application for approval of his removal was also sent to the National Industrial Tribunal at Bombay.
(vi)During the pendency of the application seeking approval for removal, the second respondent also filed his counter on 29.6.2001. Even though a rejoinder was filed by the petitioner, the learned Tribunal finding fault with the petitioner that they have failed to pay the subsistence allowance for the period the 2nd respondent was inside the jail, refused to accept the application when he himself was in jail and not available for work seeking approval for removal of service from the petitioner service. Aggrieved by that, the learned counsel for the petitioner filing the present writ petition submitted that the approach adopted by the learned Industrial Tribunal that the person-turned prisoner was denied subsistence allowance while he was in jail during the sentence period is contrary to law.
(vii) In support of his submissions, the learned counsel relied upon a judgment of the Apex Court in RANCHHODJI CHATURJI THAKORE V. SUPERINTENDENT ENGINEER, GUJARAT ELECTRICITY BOARD, HIMMATNAGAR(GUJARAT) AND ANOTHER (1996 (11) SCC 603) in which the Apex Court has held that if a person had involved himself in a crime, though he was later acquitted, he had disabled himself from rendering the service on account of conviction and incarceration in jail. Under these circumstances, the said employee or officer is not entitled for payment of backwages.
(viii) The learned counsel has also relied upon one another judgment in the case of KRISHNAKANT RAGHUNATH BIBHAVNEKAR V. STATE OF MAHARASHTRA AND OTHERS (1997 (1) LLJ 1190) to show that the 2nd respondent is not entitled to be treated as on duty from the date of suspension till the date of acquittal for the purpose of computation of pensionary benefits.
On these basis, the learned counsel for the petitioner prayed for allowing the writ petition by setting aside the impugned order.
3.(i) Mr.K.M.Ramesh, learned counsel appearing for the respondents 3 to 6, in reply, heavily contended that though the 2nd respondent is no more now alive, represented by his legal representatives R3 to R6 are entitled to get the subsistence allowance and also the full backwages from the date the second respondent was released from jail on 17.11.1998.
(ii) The learned counsel for the respondents further submitted that the learned Tribunal having seen that the petitioner has failed to comply with the condition employed under section 33(2)(b) of the Industrial Disputes Act 1947 for payment of one month salary has rightly dismissed the prayer for granting approval and therefore, this court need not disturb the said reasoned finding.
(iii) The alternative argument placed by the learned counsel for the respondents before this Court is to remand the matter to the learned Tribunal to decide the same on merits since the case of the second respondent was not considered in its entirety on merits.
4. This court is not able to agree with either of the arguments advanced by the learned counsel appearing for the second respondent. For, in a case where an employee is placed under suspension by the management it is settled law that he should be paid with subsistence allowance for the period of suspension. But, in the present case, the second respondent-late J.S.Naik while serving as Loader in Calicut Airport was arrested by the customs authorities and he was also kept in jail and criminal proceedings were also initiated against him. When he was imprisoned under Section 135 of the Customs Act, maximum punishment he had to undergo was 3 years. But, unfortunately, the trial could not be completed. As a result, he was constrained to file a Criminal M.C.No.5195/1998 on the file of the Kerala High Court and the Kerala High Court also finding that he was kept inside the jail for more than three years under COFEPOSA detention order, by quashing the criminal proceedings directed to release him forthwith, as he underwent more than three years imprisonment. This shows that the order passed in Crl.M.C.No.5195/1998 is not giving any clean chit by holding that the 2nd respondent was innocent in respect of COFEPOSA initiated under section 135 of the Customs Act. Subsequently, the petitioner management also by placing him under suspension after he was released from jail on 17.11.98 passed a detailed suspension order on 26.11.1998 and subsequently, he was also paid with subsistence allowance during the period he was placed under suspension after 26.11.1998. Therefore, as held by the Apex Court in the above mentioned Judgment viz., RANCHHODJI CHATURJI THAKORE VS. SUPERINTENDENT ENGINEER, GUJARAT ELECTRICITY BOARD, HIMMATNAGAR (GUJARAT) AND ANOTHER (1996 (11) S.C.C. 603), a person who had involved himself in a crime, though he was later acquitted, he had disabled himself from rendering the service on account of conviction and incarceration in jail. Therefore, such person is not entitled to payment of backwages. Similarly, in KRISHNAKANT RAGHUNATH BIBHAVNEGAR V. STATE OF MAHARASHTRA AND OTHERS (1997 I L.L.J. 1190) the Apex Court has clearly held that a person, who was placed under suspension, after completion of the criminal case, getting reinstatement in service will not be entitled to consequential benefits as a matter of course.
5. As I have already held above, the second respondent late J.S.Naik having involved himself in a crime, he was detained under COFEPOSA for the period of three years. Subsequently, he was directed to be released by the order of the Kerala High Court for the reason that his period of sentence was more than the maximum period of sentence. While so, the learned Tribunal committed serious error in giving a direction for payment of subsistence allowance for the period he was inside the jail. Therefore, this Court has no other option, except to set aside the erroneous impugned order.
6. Accordingly, the impugned order is set aside and the writ petition is allowed. However, there is no order as to costs.
sal To The Presiding Officer National Industrial Tribunal 1st Floor, Shram Raksha Bhavan Shivsrusthi Road, Opp.Priyadarshini Off Eastern Express Highway, Sion Mumbai 400 022