(Prayer: Writ Petition filed under Article 226 of the Constitution of India, pleased to issue a Writ or direction particularly in the nature of Writ of Certiorari calling for the records relating to the order dated 29.11.2017 passed by the second Respondent in A.P.No.272 of 2012 and to quash the same.)

1. The Writ Petition is filed challenging the award in A.P.No.272 of 2012 whereby, the second respondent refused to grant approval for the order of punishment of dismissal from service passed by the petitioner / Management.

2. Upon perusing the affidavit filed in support of the Writ Petition and hearing Mr.Aswin, the learned counsel appearing on behalf of the Management, the grievance of the Management is that D.Alexander, the workman originally involved in this case joined duty with the petitioner / Management on temporary basis on 11.11.2007. He worked for only about eight months and was unauthorisedly absent from 20.07.2008. A report in this regard was received from the concerned branch on 22.07.2011 and thereafter, a charge memo was issued on 27.07.2011. No explanation whatsoever was admitted by the workman. However, a domestic enquiry was ordered and in the enquiry the workman participated.

3. It is the case of the workman that he fell down from a two-wheeler and got fits and therefore, he was taking treatment and he became well only in the year 2012. However, the medical records that was produced did not support the said stand. The enquiry officer therefore, returned the finding that the charge as proved. Thereafter, the disciplinary authority considered the further explanation to second show cause notice and passed an order of dismissal on 02.11.2012. Thereafter, the approval petition was filed before the second respondent immediately within six days. The authority by the order impugned in the Writ Petition rejected the approval by an order dated 29.11.2017. Challenging the same, the present Writ Petition is filed. Pending the Writ Petition, on 21.03.2021, the workman also since died and the legal heirs are impleaded as respondent No.3 and 4 and they are contesting the matter.

4. Mr.Aswin, the learned counsel for the petitioner would submit that the second respondent considered all the five questions as required to be considered by him as per the judgment of the Hon’ble Supreme Court in Lalla Ram Vs. DCM Chemical Works [ AIR 1978 SC 1004 ] and answered all the five questions in favour of the workman. With reference to the first question whether the domestic enquiry was conducted in a fair and proper manner, the finding that was made is that it was not. It was given only on the basis that the enquiry proceedings were not marked or produced before the second respondent. On the other hand it can be seen that the basic report was produced as Ex.P1, Charge memorandum was Ex.P2, the findings of the enquiry in Ex.P3, the enquiry notice in Ex.P4, explanation to the enquiry notice as Ex.P5 and second show cause notice as Ex.P6 and explanation to second show cause notice as Ex.P7 and the order of punishment as Ex.P8.

5. A perusal of the enquiry report itself would reveal the day to day proceedings in the enquiry and therefore, it can be seen that due opportunity has been granted to the workman and the finding in this regard is perverse. The second question that was addressed by the second respondent with regard to whether any prima-facie case is made out on the basis of acceptable evidence is again incorrect. The Management witness was examined and it was duly proved that the workman was unauthorisedly absent from 20.07.2008. Therefore, the finding in this regard is perverse. The third question whether the action amounted to victimisation or not the second respondent went into the question of adequacy of the punishment and on that basis held that it is a harsh punishment and therefore answered the question in favour of the workman. Such an exercise cannot be undertaken by the second respondent. The question of victimisation is different from the punishment being harsh. If the punishment is excessive or harsh, it is for the workman to raise an industrial dispute and it is only for the Labour Court to consider the same. With reference to the finding regarding the one month salary, the second respondent erroneously found that a sum of Rs.996/- was given as short. It can be seen that even by reading Ex.R2 to Ex.R6 the workman’s claim that Rs.996/- was given less cannot be countenanced as the minimum wages worksout only to Rs.3380/-. The finding of the second respondent that the delay of six days would vitiate the proceeding is again erroneous and in the rules that is framed by the State of Tamil Nadu, what is required is to simultaneously send the notice while filing the application for approval. In this case, the notice was sent on the day of filing of the approval and even approval petition was filed within a period of six days. Therefore, the said finding is again erroneous in law.

6. Per Contra, the M/s.G.K.Dharshini, learned counsel appearing on behalf of the workman would submit that the six days itself has been held to be undue delay by the Division Bench of this Court in Writ Appeal No.3003 of 2024 (The Management Tamil Nadu State Transport Corporation, Villupuram Vs. D.Venkatesan and another). Further the Hon’ble Supreme Court in SLP (Civil) No.7817 of 2022 in the case of (The Management Tamil Nadu State Transport Corporation, Kumbakonam Vs. N.Balasubramanian and another) had clearly held that the reading of the all the earlier decisions of the Supreme Court the Approval Petition should be filed simultaneously with the dismissal order. Therefore, the finding that six days delay would vitiate the proceedings cannot be found fault with. With reference to the salary when the workman had produced Ex.R2 to Ex.R6 in order to justify his calculation nothing was produced on behalf of the Management and therefore finding in this regard cannot be held to be perverse. With reference to the question No.3 relating to victimisation the learned counsel would again rely upon the paragraph No.39 of the judgment of the Hon’ble Supreme Court in John D'Souza Vs. Karnataka State Road Transport Corporation (AIR Online 2019 SC 1202) to contend that such an exercise can be undertaken by the second respondent. With reference to the findings in respect of question No.1 and 2, the learned counsel would submit that when the enquiry proceedings are not placed on record whether adequate opportunity has been given to the employee or not cannot be determined and therefore the finding need not be interfered.

7. In reply thereof Mr.Aswin, the learned counsel appearing on behalf of the petitioner / Management relying upon the same judgment in John D'Souza Vs. Karnataka State Road Transport Corporation (cited supra) by pointing out to paragraph No.33 and 34 would submit that it is only required of the second respondent to verify whether any prima-facie case is made out or not as the workman has another opportunity to approach the Labour Court. He would also further rely upon the Division Bench judgment in V.Duraisamy Vs. The Management, Tamil Nadu State Transport Corporation, Coimbatore and Another [W.A.No.2814 of 2012] whereby this Court has not held that the delay of few days would be fatal to the approval petition.

8. I have considered the rival submissions that are made and perused the material records of the case.

9. In this case, Ex.P7 punishment order that is passed imposes a punishment of removal from service and the relevant portion is extracted hereunder:-

              

10. Thus it can be seen that the punishment was imposed by taking into account the unauthorised absence from 20.07.2008, till date of punishment. It is in this context, it can be seen that even though the employee was unauthorisedly absent once the charge memo was issued, he appeared before the authorities and in the domestic enquiry and was pleading that he must be permitted to join service. Under that circumstances, the employee was neither permitted to join service nor placed under suspension neither paid any subsistence allowance. However, when the punishment order was passed on 02.11.2012, the entire period upto the date of the punishment order is taken into account as unauthorised absence for imposing the penalty. It is in this context, neither the opportunity of facing the enquiry appears to be fair and proper nor it can be held that there is prima-facie evidence of unauthorised absence upto the date of punishment order that is 02.11.2012. Therefore, even though for different reasons, I agree with the findings of the second respondent that the action of the petitioner does not satisfy the first and second question that is raised in the Approval Proceedings relating to a fair procedure to be adopted and prima-facie case to be made out. Further with reference to the monthly salary also, it is settled that the one month salary is ordered to be paid under Section 33 in order to enable the employee to tide over the immediate crisis and it has been held that it would be for the succeeding month in which the order is served on the employee. When the final order was passed on 02.11.2012, the wages that would be equivalent for the month of November 2012 is the one which has to be paid to the employee and the owners is also held to be that of the Management to prove that they have paid the correct amount in case of any dispute. In this case, the workman has raised dispute by pointing out to certain Government orders and the other documents. Mr.Aswin only points out to the Government Order that is marked on behalf of the workman with reference to the minimum wages. It is not that the minimum wages is ordered but had the employee been in the service of the respondent what would have been the wages he would have received in the month of November 2012 is the question and that should have been proved only by the Management that it has paid the amount. When no calculation is presented in the petition nor any salary receipt / schedule is also filed along with the approval petition and marked as a document. No exception can be taken to the finding of the second respondent that the employer has not satisfied the said ground also.

11. In view of my above findings it is not necessary to go into the other two questions with reference to the victimisation and delay is concerned. However, in this case, the facts that are to be taken into consideration are that the employee worked only for about eight months and thereafter the proceedings were pending and now pending the proceedings, he also died. Yet another thing that is to be taken into account is that the employee was only on daily wage basis and was not conferred permanency before the punishment order. Therefore, even if he would have been alive he would have only been reinstated as a temporary employee and upon his death the benefits that would have been received by the legal heirs would only the DCRG. Taking all that into account more specifically a reason that is stated by the employee for his unauthorised absence is also prima-facie not satisfactory and the approval was not granted only on account of the default and the procedural lapses that were committed by the petitioner / Management.

12. Overall considering the length of service, the nature in which the adjudication is made and the facts and circumstances of the case, I am of the view that the relief that can be granted to the respondent No.3 and 4, the legal heirs can be a one time lumpsum compensation instead of other reliefs that would also save the further facing of the proceedings or protraction of the any further litigation between the parties. By considering the last drawn wages, the period of work and all other circumstances, I am of the view that if the petitioner / Management is directed to pay a one time lumpsum compensation of Rs.2,00,000/- that would be in the interest of both sides and would serve the ends of justice. In view thereof, this Writ Petition is partly allowed on the following terms:-

               i) The findings in the order impugned in the Writ Petition dated 29.11.2017 are partly affirmed. However, the relief that is granted is modified to the effect that the petitioner / corporation shall pay a sum of Rs.2,00,000/- to the respondents 3 and 4 within eight weeks from the date of receipt of the copy of the order. If the petitioner / Corporation fails to pay the amount within eight weeks, thereafter the amount will carry interest at the rate of 12 % per annum from the date of the order till disbursement.

13. With the above directions and observations, the Writ Petition stands partly allowed. Consequently, connected miscellaneous petitions are closed. No costs.