Remanded

The Management v. The Special Deputy

Madras HC15 Feb 2022WP/6292/2017

Case brief

AI extract

What is this about?

The Madras High Court set aside an order refusing approval of termination, holding that the Labour Officer failed to follow the Saint Fahime procedure. The matter was remitted to be decided afresh after recognizing eyewitness non-examination.

What did the court decide?

The impugned order refusing approval of termination is set aside and the matter is remitted back to the First Respondent for a fresh decision.

The Management Vs The Special Deputy — Pension and Retirement Benefits | Madras HC (2022)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 15.02.2022

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CORAM

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THE HON'BLE MR. JUSTICE P.D. AUDIKESAVALU

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W.P. No. 6292 of 2017 and W.M.P. No.6780 of 2017

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The Management, Tamil Nadu State Transport Corporation (Kumbakonam) Limited, New Railway Station Road Kumbakonam – 612 001. ...Petitioner

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-vs-

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The Special Deputy Commissioner of Labour DMS Campus, Anna Salai Chennai.

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P.Purushothaman ...Respondents

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Prayer:- Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, call for the records pertaining to the order dated 18.04.2016 passed by the First Respondent in Approval Petition No. 216 of 2010 and quash the same, consequently direct the First Respondent to approve the order of the Petitioner dated 03.12.2010 dismissing the Second Respondent from service.

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For Petitioner : Mr. D.Venkatachalam, Standing Counsel For Respondents : Mrs. C.Sangamithirai, Special Government Pleader (for R1) Mr. S.T.Varadarajulu (for R2)

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

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O R D E R

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Heard Mr. D.Venkatachalam, Learned Standing Counsel for the Petitioner, Mrs. C.Sangamithirai, Learned Special Government Pleader appearing for the First Respondent and Mr. S.T.Varadarajulu, Learned Counsel for the Second Respondent and perused the materials placed on record, apart from the pleadings of the Petitioner.

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The Second Respondent, who was employed as senior driver, had been terminated from service by the Petitioner by Order No. TNSTC/T10/Thiru/044/ 2009 dated 03.12.2010 on the charge of negligent driving. Since conciliation proceedings relating to an industrial dispute between the Petitioner and Trade Union in which the Second Respondent was a member was then pending before the First Respondent, the Petitioner made an application under Section 33(2)(b) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act' for short) for approval of termination, but it was rejected by order dated 18.04.2016 in A.P.No. 216 of 2010 passed by the First Respondent. Aggrieved thereby, the Petitioner has filed this Writ Petition challenging the same.

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It is evident from the impugned order that the First Respondent has examined the application for approval made by the Petitioner with reference to the relevant aspects stipulated in the decision of the Hon'ble Supreme Court of India in Lalla Ram -vs- D.C.M.Chemical Works Ltd. [(1978) 3 SCC 1], which are as follows:-

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(i) whether a proper domestic enquiry in accordance with the relevant rules/Standing Orders and principles of natural justice has been held;

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(ii) whether a prima facie case for dismissal based on legal evidence adduced before the domestic tribunal is made out;

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(iii)whether the employer had come to a bona fide conclusion that the employee was guilty and the dismissal did not amount to unfair labour practice and was not intended to victimise the employee;

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(iv) whether the employer has paid or offered to pay wages for one month to the employee; and

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(v) whether the employer has simultaneously or within such reasonably short time as to form part of the same transaction applied to the authority before which the main industrial dispute is pending for approval of the action taken by him.

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The First Respondent came to the conclusion that the requirement in items (iii), (iv) and (v) had been satisfied and in respect of the aspects in items (i) and (ii), it was held

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

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that since the eye-witnesses of the accident have not been examined in the domestic enquiry, it has not been conducted following the Rules, Standing Orders and the principles of natural justice and prima facie case has not been made out.

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Insofar as the question relating to validity of the domestic enquiry is concerned, the reason assigned by the First Respondent is that it is vitiated because the eye-witnesses of the accident have not been examined in the domestic enquiry to prove the charge. It would suffice here to refer to the decision of the Hon'ble Supreme Court of India in Management of Tamil Nadu State Transport Corporation (Coimbatore) Limited -vsM.Chandrasekaran [(2016) 16 SCC 16], where it has been held that it would not be necessary to examine the eyewitnesses to an accident for which an employee is charged for misconduct of negligent driving as the doctrine of res ipsa loquitur would come into play and the burden would shift on the employee who was in control of the bus to establish that the accident did not happen on account of any negligence on his part. It would also be necessary to focus here that the Hon'ble Supreme Court of India in the decision in John D'Souza -vsKarnataka State Transport Corporation (Order dated 16.10.2019 in Civil Appeal No. 8042 of 2019) has explained the law relating to the procedure to be adopted in a proceeding for approval under Section 33(2)(b) of the Act with reference to the earlier rulings, as follows:-

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"31. This Court in the above cited decisions has, in no uncertain terms, divided the scope of enquiry by the Labour Court/Tribunal while exercising jurisdiction under Section 33(2)(b) in two phases. Firstly, the Labour Court/Tribunal will consider as to whether or not a prima facie case for discharge or dismissal is made out on the basis of the domestic enquiry if such enquiry does not suffer from any defect, namely, it has not been held in violation of principles of natural justice and the conclusion arrived at by the employer is bona fide or that there was no unfair labour practice or victimisation of the workman. This entire exercise has to be undertaken by the Labour Court/Tribunal on examination of the record of enquiry and nothing more. In the event where no defect is detected, the approval must follow. The second stage comes when the Labour Court/Tribunal finds that the domestic enquiry suffers from one or the other legal ailment. In that case, the Labour Court/Tribunal shall permit the parties to adduce their respective evidence and on appraisal thereof the Labour Court/Tribunal shall conclude its enquiry whether the discharge or any other punishment including dismissal was justified....

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It, thus, stands out that though the Labour Court or the Tribunal while exercising their jurisdiction under Section 33(2)(b) are empowered to permit the parties to lead evidence in respect of the legality and propriety of the domestic enquiry held into the misconduct of a workman, such evidence would be taken into consideration by the Labour Court or the Tribunal only if it is found that the domestic enquiry conducted by the Management on the scale that the standard of proof required therein can be preponderance of probability’ and not a proof beyond all reasonable doubts’ suffers from inherent defects or is violative of principles of natural justice. In other words, the Labour Court or the Tribunal cannot without first examining the material led in the domestic enquiry jump to a conclusion and mechanically permit the parties to lead evidence as if it is an essential procedural part of the enquiry to be held under Section 33(2)(b) of the Act."

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Viewed from this perspective, if the First Respondent had been of the opinion that the domestic enquiry suffered from any infirmity, it ought to have disclosed the same to the parties and thereafter called upon them to adduce their evidence in support of their respective contentions and then finally decided the validity of the domestic enquiry.

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As it is apparent that the exercise in accordance with the procedure required to be followed in the aforesaid binding decision of the Hon'ble Supreme Court of India had not been undertaken by the First Respondent in this case, it would not be possible to uphold the impugned order refusing approval for termination of the Second Respondent.

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The result of the foregoing discussion is that the impugned order dated 03.12.2010 in A.P. No. 216 of 2010 passed by the First Respondent, which cannot be sustained, is set aside and the matter is remitted back to the First Respondent for deciding the matter afresh in the required manner. In order to expedite disposal, the matter shall be listed for hearing before the First Respondent at 11.00 a.m. on 22.06.2022 when the Petitioner and the Second Respondent shall appear in person or through their authorized representative as well as on the subsequent dates to which it is adjourned. If the First Respondent is not in a position to take up the matter for hearing on that date, it shall inform all parties concerned of the date of hearing to which it is adjourned in the prescribed manner. It shall be ensured by the First Respondent that there is atleast one effective hearing every week showing progress of the case, that full opportunity of hearing is afforded to all parties concerned following the prescribed procedure in consonance with the

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

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principles of natural justice, that reasoned orders are passed dealing with each of the contentions raised by them on merits and in accordance with law, that the decision taken is communicated to the concerned parties under written acknowledgment and that proof of such compliance is filed before the Registrar (Judicial) of this Court. Though obvious, needless to add here that while deciding the matter, the First Respondent shall not be inhibited or influenced by the impugned order, which has been set aside.

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In fine, the Writ Petition is disposed on the aforesaid terms. Consequently, the connected Miscellaneous Petition is closed. No costs.

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Sd/-

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Assistant Registrar (CO) //True Copy//

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Sub Assistant Registrar

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Maya

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The Management, Tamil Nadu State Transport Corporation (Kumbakonam) Limited, New Railway Station Road, Kumbakonam – 612 001.

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The Special Deputy Commissioner of Labour, DMS Campus, Anna Salai, Chennai.

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Copy to

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The Registrar (Judicial), Madras High Court, Chennai – 600 104. 2. P.Purushothaman S/o. Pappu Naidu Now Residing at No.1/50 Main Road, Sattiyakudi Killukudi Post, Nagapattinam District. +1cc to Mr.D.Venkatachalam, Advocate SR. No. 9618 +1cc to Mr.S.T.Varadarajulu, Advocate SR. No. 9681

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W.P. No. 6292 of 2017

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JPL (CO) PR (19/05/2022)

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

The Management v. The Special Deputy

Case brief

What is this about?

What did the court decide?

The Management v. The Special Deputy

Case brief

What is this about?

What did the court decide?

What the court decided

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