IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12.02.2010 CORAM: THE HON’BLE MR. JUSTICE K.CHANDRU W.P.No.2778 of 2010 & M.P.No.1 of 2010 A.P.ELAMVALUTHI [ PETITIONER ] Vs 1 THE MANAGING DIRECTOR THE TAMILNADU STATE TRANSPORT CORPORATION (COIMBATORE) LTD. CORPORATE OFFICE 37, METTUPALAYAM ROAD COIMBATORE-641 043. 2 THE GENERAL MANAGER TAMILNADU STATE TRANSPORT CORPORATION (COIMBATORE) LTD. ERODE DIVISION, DIVISIONAL OFFICE NO.45, CHENNIMALAI ROAD ERODE-638 001. [ RESPONDENTS ] Prayer : Petition under Article 226 of the Constitution of India praying for a Writ of Certiorari calling for the records in Proceedings Pa.No.10669/D1/26A/D6/988/ Legal/tha.A.Po.Ka./Ema/2008 dated 7.12.2009 passed by the second respondent herein and quash the same. For Petitioner :: Mr.R.Murugesan For Respondents :: Mr.T.Chandrasekar, Spl.G.P O R D E R The petitioner is working as a Driver in the Transport Corporation. He was charge sheeted and after conducting of an enquiry and after giving opportunity on the enquiry officer's report, the petitioner was issued with a second show cause notice dated 7.12.2009. The petitioner has come forward to challenge the said show cause notice. https://hcservices.ecourts.gov.in/hcservices/ 2. The contention raised by the petitioner was that when the second show cause notice mentioned about various past conduct, he was not put on notice about it at the time of issuance of the charge memo itself. 3. The requirement to refer to the past conduct of workman under the respondent Transport Corporation flows from Standing Order No.17(5) of the Model Standing orders. Therefore, after holding the petitioner guilty of a misconduct and before inflicting with the punishment, the management must take into account past conducts before inflicting with the punishment proposed therein. It is for the petitioner to submit his explanation and convince the authorities that neither the existing charges are not proved or in any event his past conduct was not so serious to be considered for imposing a punishment for the proved misconduct for which the enquiry was held. 4. The Supreme Court vide its judgment in Pandiyan Roadways Corporation Ltd. v. N. Balakrishnan reported in (2007) 9 SCC 755 dealt with the same argument on the same issue in relation to the same Corporation. The following passages in paras 7,10, 11 and 18 contained the respective contention of parties and the answer given by the Supreme Court. They may be usefully extracted below: "7. Mr. T. Harish Kumar, learned counsel appearing on behalf of the appellant, would submit that Clause 17(5) of the Certified Standing Orders of the Corporation cannot be held to be imperative in character. According to the learned counsel, in a case of misconduct involving criminal breach of trust, the employer would be justified in imposing a punishment of termination of services and in that view of the matter, question of looking into the past conduct of the employee would not arise. 10. Mr. S. Guru Krishna Kumar, learned counsel appearing on behalf of the respondent, on the other hand, would submit that it is not a case where this Court should exercise its discretionary jurisdiction under Article 136 of the Constitution of India. It was contended that Clause 17(5) of the Certified Standing Orders was clearly applicable and the conditions laid down therein must be considered before imposition of punishment keeping in view its cumulative effect. The learned counsel would contend that Clause 17(5) of the Certified Standing Orders is mandatory in character. It was also contended that admittedly past conduct of the respondent has not https://hcservices.ecourts.gov.in/hcservices/ been considered while imposing the punishment. It was urged that the conduct of the respondent was otherwise blemishless. Our attention, in this behalf, has been drawn to the fact that in terms of the order of the Labour Court refusing to grant approval, the respondent was taken back in service in the year 1989 and since then he has been working in the bank without any blemish whatsoever. The learned counsel would submit that the order of acquittal passed by the criminal court having been taken into consideration by the Division Bench, the same should be considered to be an additional factor apart from the factors contained in clause 17(5) of the Certified Standing Orders. 11. .... Clause 17(5) of the Standing Orders of the Corporation reads as under: “17(5). In awarding the punishment under this Standing Order the employer shall take into account the gravity of the misconduct, the previous record of the workman and any other extenuation or aggravating circumstances that may exist.” On a plain reading of the said provision and particularly in view of the fact that the word “shall” has been used, prima facie it would be construed to be imperative in character. It may, however, be held to be directory in certain situation. While construing a statute of this nature, the context plays an important role. Interpretation of a statute would also depend upon the fact situation obtaining in the case. There are, however, certain exceptions to the said rule. 18. Ordinarily, although sub-clause (5) of Clause (17) of the Certified Standing Orders is required to be complied with, the same, in our opinion, would not mean that in a given situation, there cannot be any deviation therefrom. In a case where dismissal or removal from service is to be ordinarily followed e.g. in a case of grave misconduct like misappropriation, strict enforcement of the rule may not be insisted upon. When, we say so, we are not oblivious of the law that an executive agency is ordinarily bound by the standard by which it professes its actions to be judged. (See Harjit Singh v. State of Punjab17.) But where a procedural provision merely embodied the principles of natural justice, in view of the decision of this Court in State Bank of Patiala12 the question as to whether the principle has been followed or not, will depend upon the fact situation obtaining in each case. (See Ashok Kumar Sonkar v. Union of India" https://hcservices.ecourts.gov.in/hcservices/ Therefore, the petitioner's legal rights are not infringed by a reference to his past conduct in the show cause notice. In any event, this Court is not inclined to interfere with the show cause notice and it is for the petitioner to submit appropriate explanation. 5. In the light of the same, the writ petition stands dismissed. No costs. The connected Miscellaneous Petition stands closed. ajr Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1 THE MANAGING DIRECTOR, THE TAMILNADU STATE TRANSPORT CORPORATION (COIMBATORE) LTD. CORPORATE OFFICE, 37, METTUPALAYAM ROAD COIMBATORE-641 043. 2 THE GENERAL MANAGER, TAMILNADU STATE TRANSPORT CORPORATION, (COIMBATORE) LTD. ERODE DIVISION, DIVISIONAL OFFICE NO.45, CHENNIMALAI ROAD, ERODE-638 001. + 1 cc to Mr. R. Murugesan, Advocate SR No.9240 W.P.No.2778 of 2010 BK(CO) SR/19.2.2010 https://hcservices.ecourts.gov.in/hcservices/