IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 27-8-2009 CORAM THE HONOURABLE MR. JUSTICE N. PAUL VASANTHAKUMAR WRIT PETITION Nos.19196 and 12033 of 2001 Tamil Nadu State Transort Corporation, (Madurai Division.III Ltd, Nagercoil ... Petitioner in W.P.19196/2001 & 2nd Respondent in W.P.12033/2001 Vs. 1. The Presiding Officer, Labour Court, Tirunelveli. ... 1st Respondent in both petitions 2. C. Mehanathan ... 2nd Respondent in W.P.19196/2001 & Petitioner in W.P.12033/2001 Prayer in W.P.No.19196/2001: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of certiorari calling for the records relating to the award in I.D.No.464/90 on the file of the first respondent dated 31.7.2000 published in the Government Gazette on 12.9.2000 and quash the same insofar as it relates to the direction to reinstate the second respondent with continuity of service. Prayer in W.P.No.12033/2001: Writ petition filed under Article 226 of the Constitution of India, praying this Court to issue a writ of Certiorarified mandamus calling for the records of the first respondent made in I.D.No.464/90 dated 31.7.2000 and quash the same as null and void, illegal and invalid insofar as the findings regarding the denial of promotion and backwages are concerned and consequently direct the second respondent to promote the petitioner as Checking Inspector with effect from 5.11.1973 treating him eligible to draw all arrears of salary inclusive of the salary for the post of Checking Inspector from 5.11.1973 together with arrears for the temporary promotional posts such as Junior Assistant for the periods from May 1979 to May, 1980, Time Keeper for the periods from 23.11.1987 to 4.4.1989 and full salary for the duty refusal periods from 8.7.89 to 15.10.2000 and with all other service and monetary benefits. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner in WP.19196/2001 : Ms.Kala Ramesh & 2nd Respondent in WP.12033/2001 For Petitioner in WP.12033/2001 : Mr.A.Amalraj & 2nd Respondent in WP.19196/2001 Mr.N.Rajan 1st Respondent in both petitions : Labour Court COMMON ORDER In W.P.No.19196 of 2001, the Transport Corporation prayed to quash the award passed by the Labour Court made in I.D.No.464 of 1990 dated 31.7.2000 insofar as it relates to the direction to reinstate the second respondent with continuity of service. 2. In W.P.No.12033 of 2001 the workman, who is the second respondent in W.P.No.19196 of 2001 has challenged the very same award insofar as denial of promotion and backwages are concerned, with further direction to the Transport Corporation to promote him as Checking Inspector with effect from 5.11.1973 with arrears of salary for the post of Checking Inspector from 5.11.1973 together with arrears of temporary promotional post of Junior Assistant for the period from May, 1979 to May, 1980, Time Keeper for the periods from 23.11.1987 to 4.4.1989 and full salary for the period from 8.7.1989 to 15.10.2000. 3. For the purpose of convenience, the parties in these cases would be referred to as 'the workman' and 'the management'. 4. The case of the workman is that from March 1971 to 1973, he served in the erstwhile Chellaian Motor Service (a private Fleet Operator) as Checking Inspector and in the year 1973, the Transport service was nationalised, pursuant to the Act called the Tamil Nadu Fleet Operators Stage Carriage (Acquisition) Act, 1971 (Tamil Nadu Act 37 of 1971). Pursuant to the said enactment, i.e, nationalisation of private Transport Services on 3.8.1973, the Transport Department of Government of Tamil Nadu called upon the workman to attend an interview for the post of Checking Inspector, however, the workman was absorbed only as Conductor with effect from 5.11.1973 in the erstwhile Tamil Nadu State Transport Department. The workman submitted representation and requested the Transport department to post him as Checking Inspector, which post he was holding in the private Transport service. The said plea was made by the workman under Section 15(3) of the Act 37 of 1971, wherein it is stated that every employee of the Fleet Operator, exclusively employed in connection with the acquired property before the notified date, shall be absorbed on the same terms and conditions and with the same rights to pension, gratuity and other matters as would have been admissible to him, if the acquired property had not vested with the https://hcservices.ecourts.gov.in/hcservices/ Government and transfer of the acquired property to the Corporation or Company owned by the Government of Tamil Nadu. From 1.1.1974 various State Transport Corporations were formed. 5. The workman was absorbed in the erstwhile Kattabomman Transport Corporation as Conductor and he joined in the said Corporation without prejudice to his right to claim Checking Inspector post and after joining duty, he made representations claiming benefits as per the above said statutory provision. The workman's service as Conductor was regularised with effect from 1.12.1976 and in May, 1979, he was promoted as Junior Assistant with the same pay and allowance as Conductor. He worked in the same capacity till May, 1980, and in June, 1980, he was reverted back as Conductor. From 1.4.1983 the Kattabomman Transport Corporation was bifurcated and Nesamany Transport Corporation was formed. The workman was absorbed as Conductor in the Nesamany Transport Corporation. Even after absorption of the workman in the Nesamany Transport Corporation he submitted representations and requested the Corporation to promote him as Checking Inspector with effect from 5.11.1973 with all attendant benefits. The said Nesamany Transport Corporation promoted the petitioner as Time Keeper from 23.11.1987 and till 4.4.1989 he continued in the said post. However, for the said period also he was paid only the salary of the Conductor. 6. On 3.3.1989 the workman submitted representation to the Predecessor-in-interest of the Transport Corporation seeking promotion as Checking Inspector and no action having been taken in spite of expiry of 15 years, he filed an application for conciliation in Conciliation Note No.677/89 before the Conciliation Officer, Nagercoil, which was returned with an endorsement stating that the same should be filed through the Trade Union. Consequently, on 17.4.1989 the workman filed another application for conciliation through the Trade Union called Anna Trade Union. However, on 30.10.1989 the same was dismissed for default due to the non- prosecution by the Trade Union. The workman was denied duty from 8.7.1989 without any written orders. The workman made representation to the management through the Trade Union called Tamil Nadu Pokkuvarathu Kazhaga Tholilalargal Sangam and claimed duty as well as promotion. The Government issued G.O.D.No.177 dated 13.8.1990 and referred the dispute before the Labour Court and the reference reads as follow: "Whether the demand of the workman that Thiru C.Mehanathan be promoted as Checking Inspector is justified ? If so, to give appropriate direction." Pursuant to the above, I.D.No.464 of 1990 was considered by the first respondent Labour Court and the impugned award was passed. https://hcservices.ecourts.gov.in/hcservices/ 7. The said award of the Labour Court is challenged by the workman as well as the management for the respective relief as stated supra. The workman was reinstated as conductor pursuant to the award of the Labour Court and no stay of reinstatement was sought for in the writ petition filed by the management. Thus, the workman is in service from the year 2000. 8. In the writ petition filed by the management it is stated that the workman was engaged as Conductor in the Transport Corporation and he was discharging his duty till 7.4.1989 and from 8.4.1989, without any intimation he absented. Hence charge sheet was issued on 27.7.1989 for availing leave from 8.4.1989 to 7.7.1989, without medical certificate obtained from the Corporation Medical Officer, and for his absence from 8.7.1989 without prior permission and without leave letter and thereby caused inconvenience to the day- to-day work of the depot. The explanation submitted by the workman having been found not satisfactory, enquiry was proposed to be conducted on 11.2.1989, 30.12.1989 and 13.1.1990. The workman absented for all the dates of enquiry and on 3.2.1990, the workman was set exparte and exparte minutes was drawn holding that the charges are proved. Subsequently provisional decision to dismiss the workman from service was taken and show cause notice was issued. Since I.D.No.464 of 1990 was pending, the Corporation filed application under section 33(1) of the Industrial Disputes Act, 1947, and the same was numbered as I.A.No.1 of 1991 and prayed for permission to dismiss the workman. The above interlocutory application was heard along with the main industrial dispute and award was passed to the effect that the workman is entitled to be posted as Conductor and not as Checking Inspector, without backwages. The contention raised in the said writ petition is that in the departmental enquiry the charge of unauthorised absence having been proved, the Labour Court ought to have given permission to dismiss and ordering reinstatement without backwages with continuity of service is unsustainable. 9. The learned counsels for the workman argued that the workman having been employed in a private Fleet Service and the same having been taken over by the Tamil Nadu Act 37 of 1971, and the workman having been employed as Checking Inspector in a private Transport service and he having been called for interview by the Transport Department in the year 1973, the second respondent was not justified in posting the workman as Conductor in the Transport Department and the repeated representation submitted by the workman while serving in the Transport department, Kattabomman Transport Corporation and Nesamany Transport Corporation having been not considered, the workman raised the dispute before the Labour Court and in the said dispute Labour Court failed to appreciate the statutory protection given to the workman under section 15(3) of the Act. The learned counsels also submitted that the workman was also not given salary of the post of Assistant and Time Keeper even though https://hcservices.ecourts.gov.in/hcservices/ he discharged the said functions and the same is an unfair labour practice. The learned counsels further submitted that for his absence he produced medical certificate from the Medical Officer and the only objection is that the medical certificate was not obtained from the Corporation Medical Officer and therefore the Labour Court has rightly rejected the permission sought for to dismiss the workman. However, the Labour Court failed to order backwages and other benefits payable to the workman as Checking Inspector. 10. The learned counsel for the Transport Corporation on the other hand submitted that though interview call letter was issued to the workman at the time of nationalisation to appear for interview for the post of Checking Inspector, the workman was appointed only as Conductor and he also accepted the same and joined in the post and therefore he cannot seek the post of Checking Inspector, that too retrospectively. The learned counsel also submitted that the Labour Court was not justified in ordering reinstatement with continuity of service when the workman absented without getting sanction of leave by producing medical certificate from the Corporation Medical Officer. 11. I have considered the rival submissions made by the learned counsel for the workman as well as the management. 12. The issue arises in these writ petitions is as to whether the Labour Court is justified in rejecting the claim of the workman seeking direction to post him as Checking Inspector from 5.11.1973. 13. Admittedly the workman was employed as Checking Inspector in the private transport service called Chellaian Motor Service. The same is made clear in the interview call letter issued by the office of the Joint Director of the Tamil Nadu State Transport Department, Kanyakumari at Nagercoil, in his memo No.975/A2/73 dated 27.7.1993, wherein 13 persons were directed to appear for interview. In the call letter six persons were called for to attend interview for the post of Conductor; five persons for the post of Driver and three persons for the post of Checking Inspector. The workman's name viz., C.Mehanathan is found in the list of Checking Inspector as item No.3. Thus, it is beyond doubt that on the date of nationalisation of the Transport Service, the workman was holding the post of Checking Inspector in Chellian Motor Service. 14. The Tamil Nadu Fleet Operators Stage Carriage (Acquisition) Act, 1971, was enacted to acquire the stage carriages of fleet operators holding 50 or more stage carriage permits and for certain other matters connected therewith in the State of Tamil Nadu to https://hcservices.ecourts.gov.in/hcservices/ implement the provisions of Article 39 B and C of the Constitution of India. Section 15 of the said Act reads as follows: "15. Transfer of acquired property to Corporation or Company and provisions of existing staff. (1) The Government shall immediately after the vesting of the acquired property under section 3 by order transfer the whole of the said property in favour of such corporation or company owned by the Government as the Government may specified in such order. (2) Where in pursuance of sub-section (1) any stage carriage is transferred to any corporation or company owned by the Government, the permit in respect of such stage carriage shall, notwithstanding anything contained in the Motor Vehicles Act, be deemed to have been transferred in favour of such corporation or company and such permit shall be valid for the unexpired period thereof. After the expiry of the said period, such corporation or company shall be exclusively entitled to the renewal of such permit and an application for such renewal may be made by the corporation or company at any time before the expiry of the said permit and the period specified in clause (a) of sub-section (2) of section 58 of the Motor Vehicles Act, shall not apply to such application. (3) Every employee of the fleet operator exclusively employed in connection with the acquired property immediately before the notified date shall hold his office or service in the corporation or company referred to in sub-section (1) on the same terms and conditions and with the same rights to pension, gratuity, and other matters as would have been admissible to him if the acquired property had not vested in the Government and transferred to the corporation or company and continue to do so unless and until his employment in such corporation or company is terminated or until his remuneration, terms or conditions are duly altered by such corporation or company: https://hcservices.ecourts.gov.in/hcservices/ Provided that in the case of employees to whom labour laws for the time being in force apply, no such termination or alteration of remuneration, terms or conditions of service shall be made except in accordance with such laws. (4) If any question arises as to whether any person was exclusively employed in connection with the acquired property immediately before the notified date, it shall be decided by the authorised officer and an appeal shall lie to the Government under sub-section (3) of section 14. (5) to (7) omitted." From the above said statutory provision, particularly section 15(3), it is evident that every employee of the Fleet Operator, exclusively employed in the Transport Service before the notified date, shall hold his office or service on the same terms and conditions with same rights to pension, gratuity and other matters and continue to get the same benefit. Thus, the action of the second respondent/Transport Department in absorbing the workman as Conductor is a statutory violation, particularly section 15(3) of the Act. 15. It is the case of the workman that he objected the action of the Transport Department in posting him as Conductor. Even if there is no objection, the Transport Department is bound to absorb the workman only as Checking Inspector as he was admittedly holding the post of Checking Inspector on the date of nationalisation of the Transport service. It is well settled in law that there cannot be any estoppel against the statute. Therefore the contention of the learned counsel for the management that the workman joined and served as Conductor and therefore he cannot claim the post of Checking Inspector, cannot be sustained. The workman was willing to perform his duty as Checking Inspector for all these years. However, he worked as Conductor in the Transport Department/Corporation and now with the second respondent and earned salary as conductor. 16. The workman is also to be blamed to certain extend that he had not raised the issue immediately on denial of his posting as Checking Inspector. It is the settled law that mere sending representation to the authorities is not enough to explain the delay/latches in approaching the Court. Therefore the workman is not entitled to get salary as Checking Inspector, however for the services rendered by him as Assistant as well as Time Keeper, he is entitled to get the salary for the said post. 17. The Labour Court is justified in ordering reinstatement and continuity of service. For denial of backwages no reason is stated by the Labour Court as to whether the workman was gainfully employed https://hcservices.ecourts.gov.in/hcservices/ during the period in which he was not allowed to work. Admittedly no dismissal order was passed by the second respondent, even though in the exparte enquiry conducted unauthorised absence was found proved. It is an admitted case that workman produced medical certificate for his taking treatment. The only technical objection raised by the Transport Corporation is that the certificate is not issued by the Corporation Medical Officer. The fact that the workman took leave due to illness having not been disproved, the Corporation was not justified in proposing to terminate the service of the workman and the Labour Court rightly refused to grant permission. Once permission is refused under section 33(1)(c), for all purposes the workman shall be deemed to be in service with salary and other benefits. 18. The consequence of not getting permission before termination is considered by the Supreme Court in the decision reported in (1999) 6 SCC 275 (Lokmat Newspapers Pvt. Ltd. v. Shankarprasad) and in paragraph 30 it is held that termination order passed in breach of Section 33(1) of the Industrial Disputes Act, 1947, is illegal. 19. The Standing Order of the second respondent Corporation states that medical leave can be availed on production of certificate issued by the Corporation Medical Officer or Registered Medical Practitioner. The charge having been framed stating that the workman has not produced medical certificate from the Corporation Medical Officer, it goes without saying that the workman produced medical certificate from the Registered Medical Practitioner. Hence the charge framed against the workman itself is unsustainable. 20. In fine, the award of the Labour Court insofar as not ordering the status as Checking Inspector to the workman from 5.11.1973 as well as denial of backwages are set aside. The writ petition filed by the management – W.P.No.19196 of 2001, seeking to set aside the order of reinstatement with continuity of service is dismissed. It is further ordered that the workman shall be treated to be appointed as Checking Inspector in the Transport Department/second respondent Transport Corporation from 5.11.1973 notionally, and he should be given posting as Checking Inspector within a period of four weeks from the date of receipt of copy of this order and the salary of the workman shall be re-fixed notionally in the cadre of Checking Inspector from 5.11.1973 till his posting as Checking Inspector and pay the salary of Checking Inspector from the date of posting him as Checking Inspector. The petitioner is also entitled to count his entire service from 5.11.1973 in the cadre of Checking Inspector for the purpose of seniority and terminal benefits. The second respondent is further directed to pay difference in pay, if any, for the period in which the workman served as Assistant and Time Keeper, within a period of four weeks from the date of receipt of copy of this order. https://hcservices.ecourts.gov.in/hcservices/ The writ petitions are ordered on the above terms. No costs. vr Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar To 1. The Presiding Officer, Labour Court, Tirunelveli. 2. The Managing Director, Tamil Nadu State Transport Corporation, Ltd., (Maduari Division.III), Ranithottam, Nagercoil 629 001 + 2 CC's to Mr. P. Sukumar Advocate SR.42762 & 42763 + 1 cc to Mr. No. Rajan Advocate SR.42364. WP.No.19196 & 12033/2001 BKY(CO) EU 10.09.2009. https://hcservices.ecourts.gov.in/hcservices/