Madras High Court
The Management Of Tamil Nadu vs J.Arumugam on 30 June, 2017
Author: T.S.Sivagnanam
Bench: T.S.Sivagnanam, P.Velmurugan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 30.06.2017 CORAM The Hon'ble Mr. Justice T.S.Sivagnanam and The Hon'ble Mr. Justice P.Velmurugan W.A.(MD).Nos.465 of 2017, 231, 232, 238, 239, 280, 311, 388, 221, 87, 66, 68, 74, 75, 77, 78, 31, 38, 39, 110 to 112, 117, 120, 134, 144, 158, 234, 254, 255, 325, 563, 590, 559, 585,575, 576, 345 to 368, 448 to 455, 470 to 495, 839 to 841, 960 to 964, 1093 to 1096 of 2017, 1277 of 2011 and 197 of 2013 and C.M.P.(MD)Nos.3349 to 3372, 4114 to 4121, 4193 to 4218, 5752 to 5754, 6469 to 6473 of 2017 and 2 of 2013 in W.A.(MD)Nos.345 to 368, 448 to 455, 470 to 495, 839 to 841, 960 to 964 of 2017 and 197 of 2013 respectively.
W.A.(MD)No.345 of 2017:
1. The Management of Tamil Nadu State Transport Corporation (Kumbakonam) Ltd, Rep. by its Managing Director, Kumbakonam, Thanjavur District.
2. The General Manager, Tamil Nadu State Transport Corporation (Kumbakonam) Ltd, Trichy Region, Trichy District.
3. The Assistant Manager (Personnel), Tamil Nadu State Transport Corporation (Kumbakonam) Ltd, Trichy Region, Trichy District. Appellants Vs.
1. J.Arumugam
2. The Administrator, The Tamil Nadu State Transport Corporation Pension Fund Trust, Thiruvalluvar House, Pallavan Salai, Chennai ? 600 002. :Respondents Prayer in W.A.(MD)No.345 of 2017:
Writ Appeal is filed under Clause 15 of the Letters Patent Act, to set aside the order passed in W.P.(MD)No.13995 of 2014 dated 03.11.2016 and dismiss the above Writ Petition.
!For Appellants : Mr.D.Sivaraman
^For Respondent No.1 : Mr.Ajoy Khose
for Mr.A.Rahul
For Respondent No.2 : Mr.K.Sathya Singh
:Common Judgement
[Judgment of the Court was delivered by T.S.Sivagnanam, J.] As the issue involved in these Writ Appeals is identical in nature, they were heard together and disposed of, by this common order.
2. For the sake of conciseness and easy reference/understanding, the nomenclature of the parties herein shall be referred to in the following manner through out this judgment and order, i.e., i) Tamil Nadu State Transport Corporation, as Management, ii) first respondent, who are retired employees of the Management/Corporation, as workmen, and iii) Tamil Nadu State Transport Corporation Pension Fund Trust, as Corporation/Trust.
3. This batch of Writ Appeals can be categorized into three sets.
The first set of Appeals have been filed by the Management, challenging the orders passed by the learned Single Judge, dated 03.11.2016 etc., by which, the learned Single Judge allowed the Writ Petitions filed by the workmen and set aside the orders of recovery, and directed the Management to settle all the terminal benefits to the workmen. The second set of Appeals have been filed by the workmen against the order passed by the learned Single Judge, dated 03.02.2017, by which, order of recovery and the punishment have been confirmed. The third set of Appeals is again by the workmen, aggrieved by that portion of the order, dated 03.11.2016, by which, the learned Single Judge, while allowing the Writ Petitions, and directing the Management to settle all the terminal benefits to the workmen, did not pass any orders with regard to payment of interest.
4. The undisputed facts are as follows;-
i) The workmen of the Management have attained the age of superannuation, and retired from service by availing the benefit of Voluntary Retirement Scheme (VRS). As on the date, on which, the impugned orders of recovery / punishment were passed, none of the workmen were in service. The punishment imposed on the workmen is major, viz., the punishment of stoppage of increment with or without cumulative effect for periods ranging from 1 to 3 years. It is pertinent to mention here that the punishment was not implemented when the workmen were in service, and only on they attaining the age of superannuation or after having been permitted to retire from service, the Management sought to implement the punishment by invoking Clause 25 (1)
(iv) (b) of the Standing orders framed for the employees of the Management/Corporation certified by the Appellate Authority under the Industrial Employment (Standing Orders) Act, 1946.
ii) The Management's case is that, the monetary value, equivalent to the amount of increment ordered to be withheld, is recoverable from the terminal benefits of the workmen, as the said certified Standing Orders provide for such a remedy, in cases, where, such an order cannot be given effect to.
iii) The Management contended that there is also Common Service Rules framed for its workmen, which provides for the various types of penalties imposable on the employee, and two of the major penalties in terms of Rule 4
(d) (e) of the Discipline and Appeal Rules, appended to the Common Service Rules, are i) Withholding of increment with or without cumulative effect and ii Recovery from pay to the extent of monetary value equivalent to the amount of increment, ordered to be withheld, where, such an order cannot be given effect to. There is an explanation, appended to the said provision, which states that, in case of stoppage of increment with cumulative effect, the monetary value, equivalent to three times, the amount of increment ordered to be withheld, may be recovered.
5. Before deciding the merits of the case, firstly, it has to be seen, as to, under which Rule, the workmen of the Management are governed by. It is admitted by the Management that the workmen are governed by Certified Standing Orders, framed for the employees of the Management/Corporation by the Appellate Authority under the Industrial Employment (Standing Orders) Act 1946 (supra), but, contrary to the same, the impugned orders of recovery were passed by the Management, by following the provisions of the Common Service Rules, viz., Rule 4 (1) (e). Pitted with this position, the learned counsel for the Management submitted that the Management has no option, except, to opt for Rule 4 (1) (e) of the Common Service Rules, for, the workmen suffered punishment of withholding of increment, which could not be given effect to, as the workmen did not have the requisite remaining years of service. That apart, such a remedy is not found in the Certified Standing Orders. This submission is untenable, for the reason that, when the Management has admitted that the workmen are governed by the Rules framed under the Certified Standing Orders, in violation to the same, it cannot follow Rule 4 (1) (e) of the Common Service Rules, by invoking Clause 25 (1) (iv) (b) of the Certified Standing Orders. Therefore, we have no hesitation to hold that the orders passed by the Management, recovering three times the monetary value equivalent to the amount of increment, are without jurisdiction, as there is no such provision in the Certified Standing Orders, enabling the Management to pass such orders. Therefore, on that ground, the impugned orders are required to be set aside.
6. Having steered clear of this issue, we will have to address the main issue, which has been raised before us.
7. The learned counsel for the Management interpreted the provisions of Clause 25 of the Certified Standing Orders, and submitted that, in terms of Clause 25 (1) IV (b) of the Standing Orders, recovery of the monetary value equivalent to the amount of increment ordered to be withheld could be recovered, where, such an order could not be given effect to, and the reason, as to why, the orders of punishment were not capable of implementation while the workmen were in service, is owing to the fact that, in certain cases, the workmen did not have requisite remaining years of service in view of their attaining the age of superannuation. Further, it is submitted that the Standing Orders are applicable only to the workmen, who have been certified under the provisions of the Standing Orders. It has statutory force and the Management was justified in passing the orders of recovery.
8. Further, it is submitted by the learned counsel that, though the workmen, in support of their case, relied upon the decisions passed by learned Single Bench of this Court (mentioned infra), those decisions were distinguishable, since two of decisions pertain to different Corporations and those Certified Standing Orders does not contain such provision, as contained in the Standing Orders framed for the present Management/Corporation:-
a) [N.Jothi Vs. The Tamil Nadu State Transport Corporation (Kumbakonam) Ltd.] in W.P.(MD)No.9889 of 2007 dated 10.08.2011.
b) [Petchimuthu Vs. The Tamil Nadu State Transport Corporation (Madurai) Ltd.] in W.P.(MD)No.12824 of 2012 dated 16.11.2012.
and
c) [Sathiaseelan Vs. The Tamil Nadu State Transport Corporation (Tirunelveli) Ltd.] in W.P.(MD)No.12705 of 2012 etc., dated 01.08.2013.
9. Further, it is submitted that the learned Single Judge, in the case of (U.Joseph Vs. The Managing Director, Tamil Nadu State Transport Corporation (Kumbakonam) Ltd.) in W.P.(MD)No.6902 of 2014 and W.P.No.23615 of 2016, dated 03.02.2017 (impugned in W.A.(MD)Nos. 575 and 576 of 2017), has considered the legal position, and dismissed the Writ Petitions filed by the workmen. Further, it is submitted that though the Writ Appeal filed against the order rendered in Sathiaseelan's case was dismissed, it does not mean that the Management cannot contest this Appeal and nor it will operate as estoppel against the Management. In support of such contention, reliance was placed on the decision of the Hon'ble Supreme Court, in the case of (B.J.Akkara Vs. Government of India) reported in (2006) 11 SCC 709.
10. Further, it is submitted that, none of the workmen had challenged the orders of punishment, and they allowed the same to remain as such, and such orders of punishment cannot remain as paper orders and the workmen have to undergo the punishment. In support of this plea, the learned counsel placed reliance on the decision of the Hon'ble Supreme Court, in the case of (State of Orissa and others Vs. Kshetrabasi Mohanti and others) reported in (1997) 11 SCC 664. With regard to the effect of the Standing Orders, reference was made to the decision of the Hon'ble Supreme Court, in the case of (Workmen in Buckingham and Carnatic Mills, Madras Vs. Buckingham and Carnatic Mills, Madras) reported in (1970 I L.L.J. 26) (this decision having not been contested nor disputed and being well settled, we need not labour much or dwell any further on this aspect).
11. The learned counsel to supplement his submissions that, under what circumstances, orders of recovery could be interfered with, referred to the decision of the Central Administrative Tribunal, in the case of (K.Nageswaararao Vs. The General Manager and others) reported in CDJ (2009) CAT Hyderabad 110, in which, the Tribunal has referred to the decision of the Hon'ble Supreme Court in (Syed Abdul Qadir and others Vs. State of Bihar and others) reported in 2009 (3) SCC 475.
12. Further, it is submitted that the workmen have committed serious misconduct and misappropriation of money of the customers, by re-using the issued tickets, and caused revenue loss to the Management, resulting in minor and major accidents etc., and as long as the punishments were not challenged, the Management was justified in passing recovery orders.
13. Further, it is submitted that, in terms of Clause 25 of the Certified Standing Orders, the punishment has to be awarded to the workmen for guilty of misconduct, and only in cases, where, such punishment awarded could not be given effect to, the question of recovering the monetary value equivalent to the amount of increment ordered to be withheld would arise, and that can be done only when such orders for recovery are passed separately. It is submitted that in the instant cases, no such order of recovery from pay was passed on the workmen, while they were in service. Therefore, the orders of recovery passed against the retired workmen are liable to be set aside.
14. Further, the learned counsel made an elaborate reference to the definition of the term ''Wages'', under Section 4 (rr) of the Industrial Disputes Act, 1947, and by emphasizing the expression 'workmen in respect of his employment', it is submitted that, wages would be payable to a workman in respect of his employment or for the work done in such employment. Obviously, what is paid to the workmen herein, is not wages but terminal benefits. The learned counsel further submitted that, no punishment can be imposed after retirement, and this being a well settled proposition, Writ Courts, in its' earlier decisions have rightly set aside the order of punishment. In support of the said contention, reliance was placed on the decision of the Hon'ble Supreme Court, in the case of (Dev Prakash Tewari Vs. Uttar Pradesh Cooperative Institutional Service Board, Lucknow and others) reported in (2014) 7 SCC 260.
15. Further, it is submitted that, in the absence of any provision in the Certified Standing Orders, for retaining an employee in service beyond the age of retirement for the purpose of continuing the disciplinary proceedings, the orders of recovery passed against the retired workmen is wholly without jurisdiction. To support such contention, reliance was placed on the decision of the Hon'ble Full Bench of this Court, in the case of (S.Andiyannan Vs. The Joint Registrar, Cooperative Societies, Madurai Region, Madurai) reported in 2015 (4) CTC 1 .
16. Further, it is submitted that, in the celebrated decision of the Hon'ble Supreme Court, in the case of [State of Punjab and others Vs. Rafiq Masih (White Washer) and others], reported in (2015) 4 SCC 334, the Hon'ble Supreme Court laid down the parameters of fact situations, wherein, employees, who are beneficiaries of wrongful monetary gains at the hands of the employer, may not be compelled to refund the same. Therefore, it submitted that, all the contingencies of the situation mentioned therein, would be squarely applicable to the case on hand.
17. We have elaborately heard Mr.D.Sivaraman, the learned counsel appearing for the Management/Corporation, Mr.Ajay Khose, the learned counsel for Mr.A.Rahul, learned counsel for the workmen and Mr.K.Sathya Singh, the learned counsel appearing for the Corporation/Trust and perused the materials placed on record.
18. Though the factual issue appears to be complicated, the legal issue, which requires to be considered by us, lies in a very narrow compass. But, before testing the correctness of the submissions made on either side, and examining the correctness of the impugned orders passed in the Writ Petitions, it would be relevant to refer to the relevant clauses of the Certified Standing Orders as well as in the Common Service Rules.
Clause 25 of the Certified Rules reads as follows:-
?25.PUNISHMENT OF MISCONDUCT:
1. The following shall be the prescribed punishment that may be awarded to workman, guilty of misconduct.
i. Censure ii. Fine: Subject to the provisions of Payment of Wages Act.
iii. Stoppage of increments: Stoppage of increments with or without cumulative effect.
a) Recovery from wages whole or part of any pecuniary loss, caused to the Corporation by the negligence or breach of orders of the workman.
b) Recovery from pay to the extent necessary of the monetary value equivalent to the amount of increment ordered to be with hold where such an order cannot be given effect to.
c) Recovery from pay to the extent necessary of the monetary value equivalent to the amount of reduction to a lower stage in a time scale ordered where such an ordered cannot be given effect to.
v. Suspension not exceeding 30 days.
vi. Demotion to lower post or lower grades. No workmen shall be demoted to any post or grades lower than to which he was initially recruited under the Corporation.
vii. Compulsory retirement.
viii. Removal from service or discharge.
ix. Dismissal from service.
x. Any of the above in case of accidents where driver is found to be guilty.?
19. The Common Service Rules framed by the Management, which is applicable to the employees other than those covered by the Standing Orders, in Annexure V, is similar to the provisions contained in the Discipline and Appeal Rules, in which, Rule 4 would be relevant to be quoted for the purpose of deciding the issue :-
?4 PENALTIES:
(1) The following penalties may be imposed on an employee, as hereinafter provided, for misconduct committed by him or for any other good and sufficient reasons.
MINOR PENALTIES:
(a) Warning
(b) Censure
(c) Fine MAJOR PENALTIES:
(d) Withholding of increments of Pay with or without cumulative effect.
(e) Recovery from Pay to the extent necessary of the monetary value equivalent to the amount of increments ordered to be withheld, where such an order cannot be given effect to.
Explanation: In case of stoppage of increment with cumulative effect, the monetary value equivalent to three times the amount of increments ordered to be withheld may be recovered.?
20. As pointed out earlier, recoveries have been effected from the terminal benefits paid / payable to the workmen by following the provisions contained in explanation appended to Rule 4 (1) (e) of the Common Service Rules. However, such provision is not contained in Clause 25 of the Certified Standing Orders. It is admitted by the Management that the Common Service Rules will not be applicable to its workmen, as workmen are covered by Certified Standing Orders. If that be so, then, the explanation contained in Rule 4 (1) (e) of the Common Service Rules, could have no application to the workmen, and the Management committed a serious error in invoking clause 25 (1) (iv) (b) of the said provision. Owing to this reason, in the preceding paragraph, we have opined that the orders of recovery are liable to be set aside on the said ground, as the Management has ordered to recover the monetary value three times equivalent to the amount of increment, in the absence of any such enabling provision in the Certified Standing Orders.
21. The next issue to be considered is as to whether clause 25 of the Certified Standing Orders could have been invoked by the Management for recovery of the monetary value, three times equivalent to the amount of increment. The Certified Standing Orders, namely, Clause 25 (i), enumerates the punishments, that may be awarded to workmen for guilty of misconduct. One such punishment is stoppage of increment with or without cumulative effect. Clause 4 is sought to be interpreted by the Management, by stating that recovery could be effected from pay of the monetary value three times equivalent to the amount of increment, ordered to be withheld, where, such an order cannot be given effect to.
22. The Management have to cross three major hurdles to invoke Clause 25 1 (iv) (b). The first being that, it has to satisfy the Court that there were orders of punishment passed. The second being that recovery can be made from the terminal benefits. The third hurdle being that, unless and until, the punishment of stoppage of increment was modified as order of recovery of the monetary value equivalent to the amount of increment ordered to be withheld, the question of invoking Clause 25 1 (iv) (b) of the Certified Standing Orders does not arise.
23. Admittedly, in the instant case, the punishment, which was imposed on the workmen, was punishment of stoppage of increment with or without cumulative effect, for periods ranging from 1 to 3 years. Further, it is an admitted fact that, prior to the workmen attaining the age of superannuation, or being permitted to retire on VRS Scheme, the punishment was not converted to that of order of recovery of monetary value. This would be the sound way to interpret Clause 25 of the Certified Standing Orders, while testing the correctness of the impugned orders, because, what is sought to be recovered is monetary value three times equivalent to the amount of the increment ordered to be withheld. But, the monetary value was never computed at an earlier point of time, prior to the retirement of the concerned workman.
24. The second aspect that has to be noted is, assuming that the contention raised by the learned counsel for the workmen is not tenable, the next hurdle, which the Management has to cross is to establish, as to why, such order could not be given effect to during the period of service of the workmen. There is nothing on record to show that there is any justifiable reason that the order of punishment could not be given effect to, while the workmen were in service. The explanation offered by the Management is that, certain punishments were not capable of implementation, as the workmen did not have the requisite number of remaining years of service. If such is the position, then, the Management, as an Employer, cannot feign ignorance of the fact as to when the workman will attain the age of superannuation and the Management should have been diligent enough to convert the order of punishment of stoppage of increment into an order of recovery. Only if the Management had done so, they would be justified in relying upon the decision in Kshetrabasi Mohanti's case (supra).
25. Keeping this issue aside for a while, we propose to examine the larger issue, which can give quietus to the entire controversy, viz., the issue as to whether the Management is vested with power to pass such orders of recovery against the retired workmen. The law is well settled on the said aspect, viz., if there is no Service Rules or Standing Orders, permitting the employer to continue the disciplinary proceedings or impose punishments against the employee after their date of retirement, no such action of recovery can be initiated and if done, it will be without jurisdiction.
26. In Dev Prakash Tewari's case, the Hon'ble Supreme Court pointed out that there was no authority vested with the Management therein, for continuing the disciplinary proceedings for the purpose of imposing any reduction in the retiral benefits payable to the appellant/workman.
27. We have seen Clause 25 of the Certified Standing Orders, and it does not provide for any contingency to impose punishment on a retired employee. The Certified Standing Orders does not empower the employer, namely, the Management herein to retain a workman beyond the age of superannuation for the purpose of continuing the disciplinary proceedings as that are provided under the Fundamental Rules in respect of Government Servants.
28. In S.Andiyannan's case, the Hon'ble Full Bench of this Court considered a somewhat similar issue in a case arising under the provisions of Tamil Nadu Cooperative Societies Act, 1983 and held that, 'once an employee retired from service, there can be no authority vested with the employer for continuing any disciplinary proceedings'.
29. The aforementioned two decisions, (viz., in Dev Prakash Tewari's case, & S.Andiyannan's case) are straight answers to the case of the Management to hold that the Management could not have passed the orders of recovery against the workmen, after the workmen having been permitted to retire, as there is no provision under the Certified Standing Orders to the said effect. One another argument was advanced by the learned counsel for the Management, by stating that the terms 'Wages' and 'Pay' used in Clause 25 of the Certified Standing Orders, have not been defined under the Standing Orders. Therefore, the Management was entitled to recover monetary value, as it was recoverable from the pay, payable to the workman, while he was in service, which would transform as terminal benefits, after retirement. The above submission is liable to be rejected for more than one reason. The Standing Orders Act defines the term ''Wages'', and in fact, the definition of the term ''Wages'' under Section 4 (rr) of the Industrial Disputes Act, 1947 has been borrowed in the Standing Orders Act. The term 'Wages' would mean all remuneration capable of being expressed in terms of money, which would be payable to a workman in respect of his employment or of work done in such employment.
30. Admittedly, the workmen are no longer in service of the Management/Corporation, and what is to be paid to them, from which, this recovery has been ordered, is terminal benefits and not wages. Therefore, on this ground also Clause 25 (1) (iv) (b) of the Standing Orders could not have been invoked by the Management. A reading of Clause 25 of the Standing Orders pre-supposes that the workmen should be in service. Thus, Clause 25 of the Standing Orders cannot be invoked against a retired workman.
31. It is contended by the learned counsel for the Management that Clause 25 of the Certified Standing Orders has not been challenged by the workmen. In our considered view, the question of challenging said Standing Orders, does not arise as the case of the workmen is that the said Standing Orders would have no application to them, as they all have attained the age of superannuation.
32. Thus, on the above grounds, it has to be necessarily held that the orders of recovery passed by the Management against workmen, recovering three times the monetary value equivalent to the amount of increment ordered to be without, are absolutely without jurisdiction. Keeping aside all the above findings, we have to examine as to whether, in equity, the Management was justified in passing such orders of recovery. The answer to this question should be in negative.
33. The Hon'ble Supreme Court, in Syed Abdul Qadir's case (supra), pointed out that the relief against recovery is granted by Courts, not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. In a more recent decision, in the case of Rafiq Masih (White Washer) (supra), the Hon'ble Supreme Court culled out the various situations, wherein, recoveries by the Employers would be impermissible in law. It would be beneficial to quote Para No.18 of the said judgment, which reads as follows:-
? ? 18. It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein, recoveries by the employers, would be impermissible in law:
?(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).
(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.
(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.
(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.? ?
34. The workmen herein would fall within the category of (iii) and
(iv) referred above, as the workmen are retired employees, therefore, no order of recovery could have been passed against them. Moreover, they would also be governed by clause (ii) referred above.
35. That apart, we can take judicial notice of the fact that the Management/Corporation has not been in a position to settle the retiral benefits to its workmen on the date of retirement or soon thereafter. Hence, the workmen are compelled to approach the Court and pursuant to the orders passed by the Hon'ble First Bench of this Court, the retiral benefits of the workmen, who retired without any blemish in their service, are paid in twelve installments. We have had instances, where, Contempt Petitions were filed by the retired workmen, as the State Transport Corporations have defaulted in adhering to the payment schedule. In such circumstances, if we weigh the scales, the workmen, obviously, have to be placed in a more advantageous position, as it would be inequitable, harsh and arbitrary to recover the monetary value equivalent to that of the amount of the increment ordered to be with held after retirement, that too, three times the monetary value equivalent, which has been held to be wholly un-sustainable and without jurisdiction. Therefore, the situation mentioned by the Supreme Court, in para 18 (v) would also stand attracted.
36. In the preceding paragraphs, we have mentioned that the Management cannot effect such orders of recovery against retired employee, as there is no such provision under the Certified Standing Orders or in the Common Service Rules. Precisely, this was the reason for setting aside the punishment imposed on the employee of the Cooperative-Societies, in the case of S.Andiyannan (supra). It is submitted that, in certain cases, the entire retiral benefits have been withheld on the ground that orders of recovery have been passed, and in some cases, because of the recovery of three times the monetary value equivalent to the amount of increment ordered to be withheld, the entire retiral benefits, including the Gratuity, Provident Fund etc., have been adjusted.
37. One more important aspect, which we wish to point out is that, the Management cannot plead ignorance of the fact that, on the date, when punishment was imposed on the workmen, the punishment was not capable of being implemented as workmen did not have the required remaining years of service. If that is so, the Management cannot take shelter under the explanation contained Clause 4 (1) (e) to suit its own convenience, and the workmen cannot be put in a disadvantageous position. In such circumstances, the Management cannot rely on the decision of the Hon'ble Supreme Court in Kshetrabasi Mohanti (supra) where, the Hon'ble Supreme Court considered the correctness of the order by substituting the punishment for a candidate, who was still in service. There, it was a case, where, it was not possible for the Corporation to implement the punishment, but, the case on hand, is a case, where, the Corporation was fully aware of remaining years of service in respect of each of the workmen, yet, chose to pass such orders of recovery. Thus, the Management, having failed to convert the punishment of stoppage of increment to that of order of recovery of monetary value, when the workmen were in service, it cannot turn around and say that those orders could be implemented by invoking Clause 25 (iv) (b) of the Certified Standing Orders.
38. Thus, for all the above reasons, we are of the firm view that the orders of recovery passed against the workmen are liable to be set aside. Accordingly, the orders of recovery are set aside and the issue that has been raised in regard to the first set of Appeals filed by the Management is answered in favour of the workmen. Insofar as the issue pertaining to the second set of Appeals filed by the workmen is concerned, the order of recovery is set aside and the punishment is confirmed. The second issue is answered partly in favour of the workmen. The next aspect is as to whether the workmen are entitled to interest on the retiral benefits, which is the subject matter in the third set of Appeals. In terms of the relevant statute, when retirement benefits are delayed, they are required to be paid along with interest. Under the Tamil Nadu Pension Rules, an amendment has been brought by insertion of Rule 1 (A) in Rule 45 (A), which provides for interest on the Death cum Retirement Gratuity (DCRG) payable on expiry of three months even in respect of a Government servant, against whom, disciplinary proceeding was initiated and he was thereafter, exonerated of the charge. If such is the position, insofar as the Government servants are concerned, we would be justified in exercising our discretion to direct the Management to pay the retiral benefits with reasonable interest since for a considerable length of time, the retirement benefits have not been paid, and the entire benefits have been fully wiped of under the garb of recovering three times the monetary value of the increment, which we have held in this order as wholly without jurisdiction and illegal. Therefore, we are inclined to direct the Management to pay reasonable interest on the said retiral benefits payable to the workmen, and this issue is answered in favour of the workmen.
38. In the result, the first set of Writ Appeals filed by the Management are dismissed, the second set of Writ Appeals filed by the workmen are partly allowed; and the third and last set of Writ Appeals filed are allowed, with a direction to the Management to settle the entire terminal benefits to the workmen in twelve equated monthly installments together with the simple interest at 6% per annum on the expiry of three months from the date of retirement of the concerned workman, in default, to pay interest at the rate of 18% per annum from the date of retirement till the date of payment. The first monthly installment shall commence from November, 2017 and the terminal benefits shall be paid on or before 10th of the said month, and the remaining installments shall be paid on or before the 10th day of every succeeding month. 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, Tamil Nadu State Transport Corporation (Kumbakonam) Ltd, Trichy Region, Trichy District.
3.The Assistant Manager (Personnel), Tamil Nadu State Transport Corporation (Kumbakonam) Ltd, Trichy Region, Trichy District.
.