IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 31.08.2010 CORAM : THE HONOURABLE MR.JUSTICE S.TAMILVANAN W.P.No.35272 of 2006 and M.P.No.1 of 2006 The Tamilnadu State Transport Corporation (Villupuram) Ltd., rep.by its General Manager, Vellore, ... Petitioner Vs. 1.The Joint Commissioner of Labour, (Conciliation), Teynampet, Chennai-6, 2.C.Nagarajan ... Respondents Writ Petition filed under Article 226 of the Constitution of India, praying for the issuance of a writ of Certiorari, calling for the records of the first respondent relating to the order dated 12.02.2005, in Approval Petition No.384 of 2003, and to quash the same. For Petitioner : Mrs.T.Chandrasekaran For Respondents : Mr.A.Edwin Prabhakar, AGP for R1 Mr.S.Ravi for R2 O R D E R The writ petition has been filed under Article 226 of the Constitution of India, seeking an order in the nature of writ of Certiorarified Mandamus, calling for the records of the first respondent, relating to the order dated 12.02.2005, in Approval Petition No.384 of 2003, and to quash the same. 2. As per the impugned order dated 12.02.2005, it is seen that one C.Nagarajan, the second respondent herein, an employee under the petitioner Corporation, was terminated from his service on the ground that he was absent in attending his duty for a period between 17.05.2002 to 25.06.2002, while he was working as a Conductor, without any intimation or getting sanction of leave. https://hcservices.ecourts.gov.in/hcservices/ Subsequently, the petitioner Corporation approached the Joint Commissioner of Labour (Conciliation), Chennai, the first respondent herein, for approval of order of the dismissal passed by it. Having considered the application filed under Section 33 (2) (b) of the Industrial Disputes Act, 1947, the first respondent rejected the application on the following reasons: i. While dismissing the opposite party from its services, the applicant had not followed the principles of natural justice? ii.While dismissing the opposite party from its services, the applicant had not followed the mandatory conditions of Section 33(2)(b) of the Industrial Disputes Act, 1947 read with Rule 64 (2) of the Tamil Nadu Industrial Disputes Rules, 1958. 3. Learned counsel appearing for the petitioner drew the attention of this Court to the findings of the Joint Commissioner of Labour (Conciliation), Chennai, which is available at No.3 of the impugned order. As per the order, the first respondent has clearly stated that the past records of the service of the opposite party, the second respondent herein, was not considered before passing order of dismissal from service against him. The evidence, let in before the first respondent, was sufficient to establish that the second show cause notice was given to the opposite party. As per the findings, it is clear that the second respondent was not put on notice about his past service. It is not in dispute that the second show cause notice said to have been issued to the second respondent herein was not marked as a documents and the same was also a reason for the first respondent holding that principles of natural justice was not followed in the enquiry. The petitioner herein has not established that principles of natural justice was not followed by the petitioner while imposing major punishment of passing order of termination of service against the second respondent herein. 4. On the aforesaid facts and circumstances of the case, I could find no errors in the findings of the first respondent holding that the petitioner herein had failed to follow the mandatory provision under Section 33(2)(b) of the Industrial Disputes Act, 1947 read with Rule 64(2) of the Tamil Nadu Industrial Disputes Rules, 1958. Section 33(2)(b) of the Industrial Disputes Act, 1947 reads as follows: "for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman: Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has https://hcservices.ecourts.gov.in/hcservices/ been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer." Similarly, Rule 64(2) of the Tamil Nadu Industrial Disputes Rules, 1958 reads as follows: "An employer seeking the approval of the Conciliation Officer, Board, Labour Court or Tribunal, as the case may be, of any action taken by him under clause (a) or clause (b) of sub-section (2) of section 33 shall present an application in Form "T" in duplicate to such Conciliation Officer, Board, Labour Court or Tribunal either personally or by registered post with acknowledgment due. A copy of it shall also be served simultaneously either personally or by registered post acknowledgment due on the workman or workman concerned and the fact indicated on the copies of the application presented to the Conciliation Officer, Board, Labour Court or Tribunal, as the case may be." 5. In the impugned order, the first respondent has further stated as follows: "In its application inform T prescribed under Rule 64(2) of the Tamilnadu Industrial Disputes Rules, 1958, seeking approval of the dismissal of the Opposite Party the Applicant had indicated that copies have been served simultaneously by registered post on the Opposite Party as required by sub rule (2) of Rule 64 and the acknowledgment of the Opposite party will be filed as soon as it is received. Exhibit A5 is described by the Applicant as the acknowledgment given by the Opposite party for receiving the dismissal order. It is not described as acknowledgment given for receiving Form T prescribed under Rule 64(2) of the Tamilnadu Industrial Disputes Rules 1958. The Applicant had not produced for my perusal any document indicating that the Form T had been sent to the Opposite party. Therefore, I am constrained to hold that the Applicant had not served on the opposite party Form T as required by Rule 64(2) of the Tamilnadu Industrial Disputes Rules, 1958." 6. It is clear from the findings of the first respondent that the mandatory provision under Section 33(2)(b) of the Industrial Disputes Act, 1947 and Rule 64(2) of the Tamil Nadu Industrial Disputes Rules, 1958, were not complied with by the petitioner https://hcservices.ecourts.gov.in/hcservices/ herein. Hence, this Court is of the view that there is no error or illegality in the impugned order passed by the first respondent herein, to set aside the same. Though the impugned order was passed on 12.02.2005, the second respondent was not reinstated by the petitioner. The petitioner Corporation neither obtained stay against the order from any competent Court nor complied with the direction. For the aforesaid violation, the petitioner Corporation has to be held responsible. 7. On the aforesaid facts and circumstances, to meet the ends of justice, I find it just and reasonable to dismiss the writ petition and also to direct the petitioner herein to reinstate the second respondent in service. 8. In the result, this writ petition is dismissed with the direction, to meet the ends of justice, accordingly, this Court directs the petitioner Corporation to reinstate the second petitioner in service and to pay 25% back wages from the date of the impugned order, dated 12.02.2005 till the date of reinstatement. This Court further directs the petitioner to reinstate the second respondent within a period of eight weeks from the date of receipt of a copy of this order and it is made clear that the second respondent is entitled to continuity of service and all monitory benefits, apart from getting 25% of the back wages from the date of the impugned order till the date of reinstatement. However, he is not entitled to back wages for the period between 17.05.2002 and 25.06.2002. 9. This writ petition is dismissed with the above direction. Consequently, connected miscellaneous petitions are closed. No order as to costs. krk / tsvn Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To The Joint Commissioner of Labour, (Conciliation), Teynampet, Chennai-6, + 1 cc to Mr. T. Chandrasekaran, Advocate SR No.64884 + 1 cc to Government Pleader, SR No.65662 DM(CO) SR/1.10.2010 W.P.No.35272 of 2006 https://hcservices.ecourts.gov.in/hcservices/