Dismissed

Tamilnadu State Transport v. the Joint Commissioner

Madras HC11 Dec 2014WP/12940/2006

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition seeking quashing of a decision declining approval for an employee's termination. The Court upheld the Industrial Commissioner's refusal due to lack of fair enquiry records and failure to pay mandated minimum wages under Section 33(2)(b).

What did the court decide?

Petition dismissed; the order declining approval for termination was upheld.

Tamilnadu State Transport Vs the Joint… — Pension and Retirement Benefits | Madras HC (2014)

¶1

IN THE HIGH COURT OF JUDICATURE AT MADRAS

¶2

DATED: 11.12.2014

¶3

CORAM

¶4

THE HONOURABLE MR. JUSTICE D.HARIPARANTHAMAN

¶5

W.P.NO.12940 OF 2006 AND W.P.M.P.NO.14533 OF 2006

¶6

The Management
Tamilnadu State Transport Corporation
(Villupuram) Ltd.,
Vellore.
Rep. by its General Manager ...Petitioner
Versus
1. The Joint Commissioner of Labour
(Conciliation)
D.M.S. Compound,
Teynampet,
Chennai – 600 006.
2. R.Vijayan ...Respondents

¶7

PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of Writ of Certiorari to call for the records of the 1^st respondent in Approval Petition No.331 of 2003 dated 03.03.2005 and quash the same.

¶8

https://hcservices.ecourts.gov.in/hcservices/

¶9

O R D E R

¶10

Heard both sides.

¶11

2.The writ petitioner is the Tamilnadu State Transport Corporation (Villupuram) Limited. The second respondent was employed as a Driver in the writ petitioner Transport Corporation. He was terminated from service by an order dated 30.01.2003 on certain allegations.

¶12

3.I am not going into the merits of the allegations, since the same is not relevant to decide the writ petition.

¶13

4.Since an industrial dispute was pending consideration before the first respondent Joint Commissioner relating to the workmen of the writ petitioner Corporation, the writ petitioner filed an application under Section 33(2)(b) of the Industrial Disputes Act, 1947, (shortly “the Act”) seeking approval for the order terminating him from service. While making the application under Section 33(2)(b) of the Act, a sum of Rs.2548/- representing one month wages has been paid by way of cheque to the second respondent as mandated under Section 33(2)(b) of the Act.

¶14

5.The approval application was taken on file by the first respondent in A.P.No.331/2003. After hearing both sides, the first respondent rejected the approval application on 03.03.2005 on two grounds.

¶15

6.The first ground for rejection was that the ex-parte enquiry conducted against the second respondent was not a fair one. The enquiry was posted on 05.07.2002. The second respondent was not present. Hence, it was the case of the writ petitioner that notice was sent informing that the enquiry was adjourned to 16.07.2002 by registered post with acknowledgment and the proof of service of the notice was filed before the Enquiry Officer. The Enquiry Officer has recorded that the notice was served. But the workman did not appear. Hence, he was set ex-parte. However, the notice sent to the workman as well as the acknowledgment due and the proof of service were not filed before the first respondent. Hence, the first respondent has held that the enquiry was held in violation of principles of natural justice and thus, refused to grant approval for termination.

¶16

7.In this regard, the relevant portion in the order dated 03.03.2005 passed by the first respondent in A.P.No.331/2003 is extracted hereunder:

¶17

“......... therefore the enquiry was adjourned to 5.7.2002 and as even on that date the Opposite party did not attend the enquiry, the enquiry was adjourned to 16.7.2002 and notice of the enquiry was sent to the

¶18

https://hcservices.ecourts.gov.in/hcservices/

¶19

Opposite party by registered post acknowledgment due and proof of service of the enquiry notice was marked before him as management Exhibit. Then the Enquiry Officer had set the Opposite party ex-parte and conducted an ex-parte enquiry. The point to be noted is that the Applicant while filing the documents before me had not placed before me the postal acknowledgment said to have been given by the Opposite party for the receipt of the notice of enquiry. There is no proof either oral or documentary to establish that the Opposite party was given sufficient opportunity and notice to participate in the enquiry into the charges framed against him and in spite of the opportunity given he had not participated in the enquiry. In such circumstances I have no option but to hold that the Enquiry into the charges framed against the Opposite party was conducted without proper and sufficient notice to him and therefore had not been conducted according to the principles of natural justice. For this reason I refuse to accord approval for the dismissal of the Opposite party.”

¶20

8.In the affidavit filed in support of the writ petition, nothing is stated as to why the entire file relating to enquiry proceedings was not produced before the first respondent, when the writ petitioner sought approval for the termination of the second respondent. Hence, I do not find any infirmity in the order of the first respondent, since the writ petitioner failed to produce the entire enquiry file before the first respondent.

¶21

9.Since this Court issued Rule Nisi, the records are produced and I have perused the records and found that the entire enquiry records were not produced before the first respondent. In these circumstances, I do not find any infirmity in the order of the first respondent declining to give approval for termination of the second respondent.

¶22

10.The second ground for rejecting the approval application is that the writ petitioner did not pay one month wages as mandated under Section 33(2)(b) of the Industrial Disputes Act, 1947 and the amount paid was a lesser one. The first respondent found that the second respondent is entitled to a sum of Rs.3081.72 as minimum wages and anything paid less than the minimum wage is not in compliance with Section 33(2)(b) of the Act. At this juncture, it is relevant to take note of the judgment of the Apex Court in PEOPLE'S UNION FOR DEMOCRATIC RIGHTS VS. UNION OF INDIA [1982 (3) SCC 235] wherein it was held that payment of wages less than minimum wages amounts to forced labour, which is prohibited under Article 23 of the Constitution. The following passage in paragraph 14 of the said

¶23

https://hcservices.ecourts.gov.in/hcservices/

¶24

judgment is extracted in this regard :

¶25

“14. ..... We are therefore of the view that where a person provides labour or service to another for remuneration which is less than the minimum wage, the labour or service provided by him clearly falls within the scope and ambit of the words 'forced labour' under Article 23. Such a person would be entitled to come to the court for enforcement of his fundamental right under Article 23 by asking the court to direct payment of the minimum wage to him so that the labour or service provided by him ceases to be 'forced labour' and the breach of Article 23 is remedied. It is therefore clear that when the petitioners alleged that minimum wage was not paid to the workmen employed by the contractors, the complaint was really in effect and substance a complaint against violation of the fundamental right of the workmen under Article 23.“

¶26

11.According to the writ petitioner, as per Section 33(2) (b) of the Act, the petitioner paid only a sum of Rs.2548/- to the workman. There is no whisper in the affidavit filed in support of the writ petition relating to this aspect of the order of the first respondent.

¶27

12.In this regard, the relevant passage in the order dated 03.03.2005 passed by the first respondent in A.P.No.331/2003 is extracted hereunder:

¶28

“According to Section 19(1) of the Motor Transport Workers Act every employee of a motor transport undertaking is entitled to a weekly holiday. Rule 28(1) of the Tamilnadu Motor Transport Workers Rules 1965 provide that every employee of a motor transport undertaking would be entitled to a holiday with wages for a week. Therefore while computing the wages for one month of a motor transport worker employed on daily wages basis, his earning for 30 or 31 days have to be calculated which would include the wages for weekly holiday also. However, the Applicant while computing the monthly wages of the daily paid Opposite Party had calculated his earnings for 26 days and not 30 or 31 days. This even on the face of it indicates that the Applicant while paying one month's wages to the Opposite Party had paid less than what it should have paid as one month's wages. Secondly the Government of Tamilnadu had fixed minimum of rates of wages payable to drivers employed in public motor transport. This

¶29

https://hcservices.ecourts.gov.in/hcservices/

¶30

minimum wages fixed in G.O.(2D) No.102 L&E, dated 22.9.99 is Rs.1781/- as basic wages and Rs.1300.72/as dearness allowance. Added together this amounts to Rs.3081.72/-. The Applicant while dismissing the Opposite Party should have paid to him atleast a sum of Rs.3081.72/- as his monthly wages. But the Applicant had paid only Rs.2548/- as the one month wages of the Opposite party. This is less than the one month wages which ought to have been paid to the Opposite party. Therefore I hold that the Applicant had not complied with the mandatory conditions of Section 33(2)(b) of the Industrial Disputes Act 1947 regarding the payment of one month's wages to the Opposite party at the time of his dismissal. On this ground also the approval sought for had to be refused.”

¶31

13.As rightly held by the first respondent, there is a mandate under Section 33(2)(b) of the Act that no workman shall be discharged or dismissed, unless he had been paid wages for one month and an application has been made by the employer to the authority before which the industrial dispute is pending, for approval of the action taken by the employer. The Honourable Supreme Court as well as this Court has held in many occasions that payment of one month wages is a mandatory one.

¶32

14.In this case, substantially a lesser amount was paid and the first respondent found that on that ground also, the approval application deserves to be dismissed.

¶33

15.As stated above, nothing is stated in the affidavit filed in support of the writ petition as to this ground, based on which the first respondent rejected the approval application. Even before this Court, during the argument, no attempt is made to justify the payment of Rs.2548/- towards one month wages, while the minimum wages, according to the first respondent is Rs.3081.72.

¶34

16.For all the aforesaid reasons, I am of the view that the writ petition deserves to be dismissed and accordingly, the same stands dismissed. No costs. Consequently, connected miscellaneous petition is closed.

¶35

Sd/-

¶36

Assistant Registrar(J)

¶37

//True Copy//

¶38

Sub Assistant Registrar

¶39

https://hcservices.ecourts.gov.in/hcservices/

¶40

TK To The Joint Commissioner of Labour (Conciliation) D.M.S. Compound, Teynampet, Chennai – 600 006. 1 CC to the Government Pleader, SR.No. 60873 W.P.NO.12940 OF 2006 PA (CO) PSI (07.01.2015)

¶41

https://hcservices.ecourts.gov.in/hcservices/

Tamilnadu State Transport v. the Joint Commissioner

Case brief

What is this about?

What did the court decide?

Tamilnadu State Transport v. the Joint Commissioner

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

N.Thilayarkarasi Vs the Dy Inspector General of

R. Sathyanarayana Vs the Government of India

C.Deivendran Vs the Commissioner

A.Pandian Vs the State of Tamilnadu

D.Chitra Devi Vs the Special Commissioner and

G.Mary Stellabai Vs the District Elementary