At, High Court of Judicature at Madras
By, THE HONOURABLE MR. JUSTICE R. SURESH KUMAR
For the Petitioner: S.T. Varadharajulu, Advocate. For the Respondents: R1 & R2, K. Kathiresan, C.S.K. Sathish, Standing Counsels.
(Prayer: Writ Petition under Article 226 of the Constitution of India praying for the issuance of a Writ of Mandamus to direct the first respondent to pay back wages from the date of dismissal to the date of superannuation with other terminal benefits and to sanction pension by 2nd respondent from June 2016 to the petitioner.)
1. The prayer sought for herein is for a Writ of Mandamus to direct the first respondent to pay back wages from the date of dismissal to the date of superannuation with other terminal benefits and to sanction pension by 2nd respondent from June 2016 to the petitioner.
2. The petitioner joined the service of the first respondent Corporation as Conductor on 31.10.1986. He had been working there for several years. However, due to some disciplinary proceedings punishment of dismissal of service was inflicted against the petitioner by the respondent Management on 04.01.2004.
3. At that time, since a common dispute was pending, there was an obligation to get approval for such dismissal order under Section 33(2)(b) of the Industrial Disputes Act, 1947, and hence an approval petition was filed by the management to the concerned authority and the said petition under Section 33(2)(b) having been considered, was rejected by the said authority by order dated 20.01.2006.
4. As against the said order, the management filed W.P.No.8614 of 2007 which was also dismissed by this Court on 06.03.2014, as against which admittedly no appeal was filed by the Transport Corporation. Hence, the order of the writ court has become final.
5. Subsequently, the petitioner attained superannuation on 10.05.2016. Therefore, from the date of dismissal ie., on 04.01.2004 till the date of superannuation ie., on 10.05.2016, the petitioner is seeking back wages which period should have been treated as if he was continuously working in the respondent Corporation, since Section 33(2)(b) petition for approval was rejected and that has been confirmed by this Court by order passed in the writ petition. Hence the petitioner, having made an attempt to get such relief from the respondents, which did not yield any fruitful result, has filed the present writ petition with the aforesaid prayer.
6. Heard Mr.S.T.Varadharajulu learned counsel for the petitioner and the learned Standing Counsels Mr.K.Kathiresan for the first respondent and Mr.C.S.K.Sathish for the second respondent.
7. Learned Standing Counsel for the first respondent submits that though steps were taken by them to file a writ appeal against the order dated 06.03.2014 in W.P.No.8614 of 2017, it could not be filed due to some administrative delay. Therefore, still they can file an appeal against the said order passed by the writ Court.
8. I am not impressed with the said submissions made by the learned Standing Counsel because, the order was passed in 2014 and now we are in 2022. Eight years have passed by and therefore this Court feels that an intra court appeal cannot be filed at this length of time. Hence, the order passed by the writ Court has become final, whereby the rejection order made by the authority under Section 33(2)(b) dated 20.01.2006 also has become final.
9. In view of the rejection of the approval petition, the dismissal order made against the petitioner has become non-est. Therefore, the respondent Management shall treat the petitioner deemed to have been in duty from 2004 to 2016 and accordingly he is entitled to get the back wages.
10. However, the fact remains that the petitioner admittedly has not worked in the respondent Corporation during the said period. Therefore, this Court feels that he may not be entitled to get the full back wages. Hence, this Court wants to allow only 50% back wages.
11. In that view of the matter, this writ petition is disposed of with the following order.
* That there shall be a direction to the respondent Transport Corporation to calculate 50% of the back wages from 04.01.2004 to 10.05.2016 and pay the same to the petitioner along with other retiral benefits, if at all anything they have not so far paid to the petitioner including the pensionary benefits. The needful as indicated above shall be undertaken by the respondent Corporation within a
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period of eight weeks from the date of receipt of a copy of this order. * It is made clear that, the employee contribution for Provident Fund with interest payable by the petitioner can be deducted from the amount payable to the petitioner as indicated above and that can be paid to the second respondent Trust so that the petitioner can get the Provident Fund / pensionary benefits. 12. With the above directions, this writ petition is disposed of. No costs.