IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 18.08.2011 CORAM THE HONOURABLE Mr.JUSTICE D.HARIPARANTHAMAN W.P.No.13814 of 2011 and M.P.Nos.1 to 3 of 2011 R.Venu ... Petitioner Vs The General Manager (Admin), Metropolitan Transport Corporation (Chennai) Ltd., Pallavan House, Anna Salai, Chennai-600 002. ... Respondent PRAYER: Petition filed under Article 226 of the Constitution of India for the issuance of Writ of Certiorari, calling for the records of the respondent in his Memo No.3163/Sa.Pi.(O.Na) 13/MTC/2009, dated 25.03.2009 and quash the same. For Petitioner : Mr.K.Raja For Respondent : Mr.V.R.Kamalanathan, Addl. Government Pleader (Transport) ORDER With consent of parties, the writ petition itself is taken up for final disposal. 2.The petitioner was appointed as a Driver in the Respondent/ Corporation, which is owned by the Tamil Nadu Government. The petitioner was placed under suspension by an order dated 25.03.2009. It is alleged that he had torn the shirt of the Checking Inspector Dhakshinamurthy and also that he had torn the records of the Management. The aforesaid allegations are stated as the reasons for placing the petitioner under suspension under Clause 26(2)(a) of the Standing Orders. It is stated that the suspension would remain in force until further orders on the subject. https://hcservices.ecourts.gov.in/hcservices/ 3.While so, the petitioner was issued with a charge memo dated 05.07.2010, alleging that he was unauthorisedly absent from 27.03.2009. 4.Thereafter, the charge memo dated 05.07.2010 was cancelled and another charge memo dated 21.12.2010 was issued alleging that the petitioner was unauthorisedly absent from 25.04.2009. 5.In the said circumstances, the petitioner has filed the present writ petition to quash the order of suspension dated 25.03.2009. According to the petitioner, the impugned suspension order was passed without application of mind. Hence, the order of suspension is liable to be quashed. 6.The respondent has not filed counter affidavit. 7.The learned Additional Government Pleader (Transport) appearing for the respondent has made submissions based on the instructions and he has produced the entire files relating to the impugned order and also disciplinary proceedings relating to the petitioner. 8.I have considered the submissions made by the learned counsel on either side. 9.The impugned suspension order dated 25.03.2009 is extracted hereunder: "vz;q}h; gzpkidiar; rhh;e;j jpU.ntq/ Xl;Leh;/ fdpdp vz;.o-12338 mth;fSf;F tpgj;Jg; gphptpypUe;J bgwg;gl;l jftypd;go gzp bfhLf;f kWf;fg;gl;ljhy;/ mth; eph;thf Mtz g[j;jfj;ij fpHpj;jJld; jpU.jl;rpzh\h;j;jp/ rp.I.9794 mth;fis jhf;fp rl;ilia fpHpj;Js;shh;. ,e;j xG';fPdj;jpd; fPH; mtiu jw;fhypf gzpePf;fk; bra;tJ mtrpabkd;gjhy; rhd;wspf;fg;gl;l epiy Miz vz;.26 (2) cl;gphpt[ (v) vd;w gphptpd; fPH; mth; kW cj;jut[ gpwg;gpf;Fk; tiu jw;fhypfkhf gzpePf;fk; bra;ag;gLfpwhh;. epiy Miz vz;.26(2)-d; gpw tpjpfSf;Fl;gl;L/ jw;fhypfg; ntiyePf;fj;jpd; nghJ/ rhd;wplg;gl;l epiy Miz vz;.26(2)(gp) vd;w cl;gphptpd; fPH; mtUf;F thH;f;ifg;go mspf;fg;gLk;. jw;fhypfg; gzpePf;fj;jpd; nghJ mtUf;F brd;id jiyikaplkhFk;. rk;ge;jg;gl;l mjpfhhpaplkpUe;J Kd; mDkjp bgwhky; mth; jiyikaplj;ij tpl;Lr; bry;yf;TlhJ. https://hcservices.ecourts.gov.in/hcservices/ mtUila gaz mDkjp ml;ilia mYtyfj;jpy; clnd xg;gilf;f ntz;Lk;. mg;go bra;aj; jtwpdhy; gaz mDkjp ml;ilia itj;jpUf;Fk; fhyk; tiuapy; khjk; xd;Wf;F +.10/- vd;w tpfpjj;jpy; mthplkpUe;J mguhjk; tNypf;fg;gLk;. " 10.The petitioner made representations on 30.03.2009, 25.04.2009 and 20.05.2010 to revoke the suspension and provide him employment on the ground that he was assaulted by Dhakshinamurthy and action should be taken against Dhakshinamurthy. Those representations were received by the Assistant Branch Manager, Ennore Depot. No reply was given on those representations. Whileso, a charge memo dated 05.07.2010 was issued making false allegations. The charges are as follows: "1.vz;q}h; gzpkidapy; gzpg[hpa[k; jpU.Mh;.ntq/ Xl;Ldh;/ fzpzp vz;.12338 mth;fs; 27.03.09 ehs; Kjy; vt;tpj Kd;dDkjpapd;wp bjhlh;e;J vl;L ehl;fSf;F nky; gzpf;F tuhjJ rhd;wplg;gl;l epiy Miz vz;.25(vi)-d; fPH; xG';fPdkhFk;. 2.,t;thW bjhlh;e;J vl;L ehl;fSf;Fk; nkyhf vt;tpj Kd;dDkjpapd;wp gzpf;F tuhjjhy;/ gzpkidapy; md;whlk; ,ay;ghf eilbgWk; ngUe;J ,af;fg; gzpfs; jilglt[k;/ gazpfSf;F mbrsfhpaKk;/ fHfj;jpw;F tUthapHg;g[k;/ epWtdj;jpw;F mtg;bgaUk; Vw;gl fhuzkhapUe;jJ rh.ep.M. vz;.25(XLIII)-d; fPH; xG';fPdkhFk;. " 11.As rightly contended by the learned counsel for the petitioner, both the suspension order and the charge memo dated 05.07.2010 could not stand together. Once the petitioner was placed under suspension by an order dated 25.03.2009, he could not be blamed that he did not report for duty from 27.03.2009. 12.When the suspension order was issued on the allegations that he mishandled with the Checking Inspector, there was no charge sheet issued on the said allegations. On the other hand, a different charge memo dated 05.07.2010 was issued alleging that he was unauthorisedly absent from 27.03.2009. As I have already held once the petitioner is placed under suspension by an order dated 25.03.2009, he could not be charged that he was unauthorisedly absent during the period of suspension. 13.The learned Additional Government Pleader (Transport) appearing for the respondent submits that the petitioner was issued with a charge memo dated 04.04.2009 based on the suspension order dated 25.03.2009 and he also produced the final order dated https://hcservices.ecourts.gov.in/hcservices/ 07.09.2009, imposing the punishment of stoppage of increment for two years with cumulative effect. 14.The learned counsel for the petitioner disputed the very issuance of charge memo dated 04.04.2009. Hence, this Court directed the respondent to show as to the service of the charge memo dated 04.04.2009 on the petitioner. There is no evidence for service of the charge memo dated 04.04.2009. It is also admitted by the learned Additional Government Pleader (Transport) appearing for the respondent that the final order dated 07.09.2009 was passed without holding any enquiry. The final order refers to the explanation dated 10.06.2009 of the petitioner. When this Court directed the respondent to produce the explanation, they had given a letter dated 10.06.2009 written by the petitioner demanding subsistence allowance and the same is not the explanation to the charge memo dated 04.04.2009. As I have already noted, the learned counsel for the respondent has admitted that no enquiry was held before passing the order dated 07.09.2009 imposing the punishments. I have found from the records that the charge memo dated 04.04.2009 was also not served on the petitioner. 15.The learned Additional Government Pleader (Transport) appearing for the respondent submits that the suspension order dated 25.03.2009 was revoked. He produced the order passed by the Joint Managing Director dated 22.04.2009 in this regard. In the said order, Joint Managing Director directed the Branch Manager, Ennore Depot, to serve the order revoking the suspension and to restore him to duty. The order of the Joint Managing Director dated 22.04.2009 is extracted hereunder: "jpU.ntq X.g.v.12338/ vz;q}h; gzpkid mth;fs; kPJ bjhlug;gl;l xG';F eltof;iff;Fg; ghjfkpy;yhj tifapy;/ mth; jw;fhypf ntiy ePf;fj;jpypUe;J tpLtpf;fg;gl;L/ cldoahf gzpapy; nru cj;jut [ gpwg;gpf;fg;gLfpwJ. mth cldoahf fpis nkyhsh;/ vz;q}h; gzpkid mth;fs; Kd; gzpf;Fr; nrUkhW gzpf;fg;gLfpwhh;. " 16.According to the learned Additional Government Pleader (Transport) appearing for the respondent, since the order revoking the suspension was refused to be received by the petitioner, he was issued with a charge memo dated 21.12.2010 alleging that he was unauthorisedly absent from 25.04.2009. https://hcservices.ecourts.gov.in/hcservices/ 17.When this Court directed the respondent to explain as to whether the order dated 22.04.2009 of the Joint Managing Director revoking the suspension of the petitioner was served on the petitioner or not, the learned Additional Government Pleader (Transport) appearing for the respondent is not able to explain about the service of the said order. On the other hand, he has produced the letter written by the Branch Manager dated 09.06.2009 alleging that the petitioner refused to receive the order revoking the suspension. The letter dated 09.06.2009 of the Branch Manager addressed to the Head Office is as follows: "jpU.Mh;.ntq/ Xl;Leh; gzp vz;.o12338 mth;fs; fle;j 20.03.09 Kjy; gzpf;F tutpy;iy. nkYk; Fwpg;ghiz vz;.3163/rgp(xe)/3/ g[fhhpd; mog;gilapy; 26.03.09 Kjy; jw;fhypf gzpePf;fk; bra;ag;gl;lhh;. ,J rk;ge;jkhf mtUf;F 4.4.2009 njjpapl;l Fw;wr;rhl;L efy; xd;W ekJ gzpkidf;F te;jJ. nkYk; 14.4.09/ FIR.745/2009 vd;W Fwpf;fg;gl;l tpgj;J gphpt[ jghy; 8.3.09 ele;j tpgj;J rk;ge;jkhf mtiu jiyikafk; tur;brhy;yp te;j fojKk; mth; bgw;Wf; bfhs;stpy;iy. fle;j 25.4.09 md;W mz;zhiu jw;fhypf gzpePf;fj;jpy; ,Ue;J tpLtpj;J gzpf;F tubrhy;yp te;j fojj;ija[k; te;J bgw;Wf; bfhs;st[k; , y;iy. gzpf;F tut[k; ,;y;iy. jw;nghJ 19.5.09 md;W jpU.ntq/ o 12338 mth;fis g{e;jky;yp[ gzpkidf;F khw;wk; bra;J te;Js;s fojj;ija[k; mth; bgw;Wf; bfhs;stpy;iy vd;gij ma;ah mth;fspd; nkyhd ftdj;jpw;F bfhz;L tUtJld; jf;f eltof;if nkw;bfhs;SkhW jhH;ika[ld; nfl;Lf;bfhs;fpnwd;. " 18.In the said letter, it is stated that the petitioner did not come to get the said order, revoking suspension. The respondent is not correct in stating so. It is for the respondent to serve the serve revoking suspension. Unless the order revoking the suspension of the petitioner was served on the petitioner, the same could not have come into effect. The Standing Orders certified under the Industrial Employment (Standing Orders) Act, provides the mode of service on the workman Clause 33(2) of the Certified Standing Orders in this regard is extracted hereunder: "2.Any notice or communication intended for any workman personally may be delivered to him personally in the premises of the industrial establishment or sent to him by post to the address of the workman as specified in the service records or as otherwise furnished by him." https://hcservices.ecourts.gov.in/hcservices/ 19.This method is not followed in serving the order dated 22.04.2009 of the Joint Managing Director revoking the suspension. In fact, when the petitioner made representations dated 30.03.2009, 25.04.2009, 20.05.2010 11.11.2010 and 20.12.2010 seeking to revoke the suspension, no reply was sent to the petitioner. Those representations were received by the Assistant Branch Manager, Ennore Depot. Furthermore, even if the order dated 07.09.2009 was passed imposing the punishment of stoppage of increment for two years with cumulative effect, the petitioner should be paid wages for the period of suspension as per Clause 26 (2)(c)(2) of the Certified Standing Orders. The said 26(2)(c)(2) is extracted hereunder: "(c)If on the conclusion of the enquiry, or as the case may be of the criminal proceedings, the workman has been found guilty of the charges framed against him and it is considered after giving the workmen concerned a reasonable opportunity of making representation on the penalty proposed that an order of dismissal or suspension or fine or stoppage of annual increment or reduction in rank would meet the ends of justice, the employer a hall pass an order accordingly. 1.Provided that when an order of dismissal is passed under this clause, the workman shall be deemed to have been absent from duty during the period of suspension and shall not be entitled to any remuneration for such period and the subsistence allowance already paid to him shall not be recovered. 2.Provided also that when an order imposing fine or stoppage of annual increment of reduction in rank is passed under this clause, the workman shall be deemed to have been on duty during the period of suspension and shall be entitled to the same wages as he would have received if he had not been placed under suspension, after deducting the subsistence allowance paid to him for such period." 20.For all the above said reasons, the impugned suspension order is quashed and the respondent is directed to pay the wages from 25.03.2009 onwards, within a period of six weeks from the date of receipt of a copy of this order. https://hcservices.ecourts.gov.in/hcservices/ 21.At this juncture, the learned Additional Government Pleader for the respondent seeks liberty to pass fresh order of suspension and to proceed with the disciplinary action relating to the allegations made in the suspension. Therefore, liberty is granted to the respondent Corporation to issue fresh order of suspension and to proceed with the disciplinary action. However, as I have already held above, the respondent has to pay the wages from 25.03.2009 till he is placed under suspension. Accordingly, this writ petition is disposed of in the above terms. Consequently, connected Miscellaneous Petitions are closed. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. mps To The General Manager (Admin), Metropolitan Transport Corporation (Chennai) Ltd., Pallavan House, Anna Salai, Chennai-600 002. 1 cc to Mr.K. Raja, Advocate, Sr. 51173 1 cc to Mr.V.R. Kamalanathan, Advocate, Sr. 50962 W.P.No.13814 of 2011 and M.P.Nos.1 to 3 of 2011 KK (CO) kk 23/9 https://hcservices.ecourts.gov.in/hcservices/