P. Tamilarasan vs Management of Tamil Nadu State Transport Corporation (Kumbakonam) Limited, rep. by its Managing Director, Kumbakonam

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2019 Supreme(Mad) 2049

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
D. KRISHNAKUMAR, J.
P. Tamilarasan - Petitioner
Versus
The Management of Tamil Nadu State Transport Corporation (Kumbakonam) Limited, rep. by its Managing Director, Kumbakonam & Ors. - Respondents
WP(MD) No.12986 of 2019 and WMP(MD) No.9668 of 2019
Decided On : 20-06-2019

Advocates Appeared:
For the Petitioner: Mr. A. Rahul.
For the Respondents: Mr. P. Balasubramanin Standing Counsel.

Headnote:
Constitution of India - Article 226 – jurisdiction - Payment of Wages Act - Removal from service - Compulsory retirement - Challenging the aforesaid order - 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 – Held, 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 - Challenging the aforesaid order, the respondents - Corporation has preferred an appeal before the Honble Supreme Court in S.L.P.No.1755 of 2018 and the same was dismissed. Therefore, the Judgment of this Court made in W.A.(MD).No. 465 of 2017 etc., batch dated 30.06.2017, is squarely applicable to the case on hand. On perusal of the impugned order, it is seen that the respondent Corporation has not provided any opportunity of hearing to the petitioner nor they followed the procedure under Clause 25 of the Standing Orders. Therefore, this Court is inclined to interfere with the impugned order passed by the second respondent, dated 08.02.2019, as it has been passed without following the principles of natural Justice and the procedure under Standing Orders - 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 - Petition is allowed

ORDER :

PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Mandamus calling for the records pertaining to the impugned order passed by the 2nd respondent in Ref.No.TNSTC/KUMBA/NIR11/UNP/03-20/2019 dated 08.02.2019, quash the same in so far as imposing recovery of Rs. 1,86,000/- towards non-implemented punishment of increment cuts and consequently, direct the respondents to forthwith pay him the recovered amount of Rs.13,182/-.

This Writ Petition has been filed seeking to call for the records pertaining to the impugned order passed by the 2nd respondent in Ref.No.TNSTC/KUMBA/NIR11/UNP/03-20/2019, dated 08.02.2019 and quash the same insofar as imposing recovery of Rs.1,86,000/- towards non-implemented punishment of increment cuts and consequently, direct the respondents to forthwith pay him the recovered amount of Rs.13,182/-.

2. According to the petitioner, the second respondent has imposed a recovery of Rs.1,86,000/- from the petitioner towards monetary value equivalent to non-implemented punishment of increment cut, which could not be implemented on account of the petitioner's retirement, which is due to take place on 31.03.2020. The petitioner states that the respondents - Corporation have not followed Clause 25(iv)(b) of the Certified Standing Orders. Further, the recovery imposed on him is illegal and without jurisdiction as per the judgment made in W.A.(MD).No.465 of 2017 etc., Batch dated 30.06.2017.

3. In support of his contention, the learned counsel for the petitioner relied upon the order passed by the Division Bench of this Court dated 30.06.2017, made in WA(MD).No. 465 of 2017 etc., batch, wherein at Paragraph Nos. 18 to 39, it has been held as follows:-

“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

MAJOR PENALTIES:

(d) Withholding of increments of Pay with or

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