K. Thirumalaisamy vs The Managing Director and The General Manager, Jeeva Transport Corporation

E. Padmanabhan, J.—The Petitioner, who was in the service of the first Respondent Transport Corporation as a driver, prays for the issue of a writ of certiorari to call for the records of the Respondents relating to charge memo dated 2-9-95 made in BA. No. 1/T/2/135A/ Law/ Jeeva / 95 and quash the same.

Heard Mr. M. Sundaresan, Learned Counsel appearing for the Petitioner and Mr. Subbiah, Learned Counsel appearing for the Respondents.

The Petitioner, a licenced driver was appointed by the first Respondent Corporation. While the Petitioner was working as a driver, charges were framed against him for fabrication and production of false educational certificate. An enquiry was conducted on 10-5-1993 with respect to the charges framed on 25-12-1992. After conclusion of the enquiry, the Respondent/ management considered the enquiry officer''s report and while holding that the Petitioner has violated the Standing Order 16/C. further opportunity was afforded to the Petitioner and by order dated 4-7-1994, he was dismissed from service with effect from 6.7.1994.

Thereafter, the Petitioner took up the matter through the office bearers of the union and there was a conciliation. As a result of conciliation, settlement was concluded u/s 18(1) of Industrial Dispute Act on 21-1-1995 between the writ Petitioner worker and the management. The settlement was signed by the writ Petitioner as well as the General Manager of the first Respondent Corporation, besides it has been signed by the union representatives. In terms of the said settlement, the writ Petitioner was given a fresh appointment as a Driver subject to the Rules and Regulations, that he will not be entitled to claim any benefit of earlier service and that he will be posted anywhere within the area of operation of Respondent Corporation. Accordingly, the Petitioner joined the post and he was working.

However, within eight months, the Respondent framed charges once again in respect of the same imputation that the Petitioner lad produced a false or fabricated educational Certificate and he was called upon to show cause as to why an action should not be initiated under the Standing Order 16 (1). The Petitioner submitted his objections, while drawing attendance of the Respondents to Section 18 (1) settlement and that it is not open to the Respondents to reopen the earlier charges based upon which he was dismissed and thus given a disposal once for all. Having given a disposal of the said charge, it is not open to Respondent to initiate fresh action in respect of the same imputation after having dismissed Petitioner and thereafter in terms of the settlement concluded u/s 18 (1) of the Industrial Dispute Act had given him a new appointment with full knowledge of the certificates already produced. Despite the objections, the Petitioner was called upon to appear before the Enquiry Officer. Hence, the Petitioner had come forward before this Court.

In the counter affidavit, the facts as stated above are not disputed, but what is ought to be contended is that the Petitioner being a new recruit, the management could very well proceed against the Petitioner for production of fabricated or false certificate once over. Such a stand of the management is rather extraordinary and impermissible in law.

It is rightly contended by Mr. Sundaresan that having initiated action against the Petitioner for production of fabricated or false educational certificate, and dismissed the Petitioner after holding an enquiry and thereafter after a long gap in terms of the settlement concluded u/s 18 (1) having reinstated the Petitioner, it is not open to the Respondent to reopen the very same issue or alleged misconduct or imputation and try to defeat the settlement concluded u/s 18(1) of the Industrial Disputes Act. Though Mr. Subbiah contended that it is open to the Respondent to take action afresh as the Petitioner is a fresh appointee, this Court after giving anxious consideration holds that it is not open to the Respondents to once again proceed in respect of the same imputation after having imposed punishment of dismissal.

Admittedly, for the production of false/ fabricated school certificate charges were framed and enquiry was conducted. Ultimately, the Petitioner was found guilty and punishment of dismissal was imposed for the said misconduct. Therefore, Respondents are well aware of that the Petitioner produced a false certificate earlier and on that basis, he was dismissed from services. After a lapse of time, there was conciliation proceedings and as a result of which settlement u/s 18(1) of the Industrial Disputes Act was concluded between the Respondents/management and the Petitioner/workman. In terms of the said concluded settlement u/s 18(1) of the Act, the Petitioner has been re-appointed as a fresh employee subject to the stipulations set out in the concluded settlement. Therefore, on the date when the settlement was arrived at and the settlement was signed as well as on the date of fresh order of appointment was issued, the Respondents were very much aware that the Petitioner is not possessed of the qualification and he also had produced false or fabricated school certificate. Despite that the Petitioner had been appointed as a fresh appointee. Thereafter, it is not open to the Respondents to once again initiate action and it is in violation of the concluded settlement. The Respondents are estopped by conduct. After the conclusion of the settlement u/s 18 (1) of the Industrial Disputes Act, the Petitioner had not produced any new certificate, but he was appointed. Having appointed the Petitioner with the full knowledge of the earlier conduct and proceedings, namely production of false certificate and having appointed him as a fresh recruit in terms of the concluded settlement, it is not open to the Respondents to once again to reopen or initiate action for the same misconduct, for which the Petitioner had already been dismissed. The Respondents cannot also be allowed to avoid the concluded settlement. After a lapse of eight months from the date of the fresh appointment orders issued by them pursuant to the concluded settlement entered between the parties, the Respondents are estopped from once again initiating action based upon the earlier misconduct which was proceeded and ultimately imposed the punishment of dismissal as well.

It is well settled law that an employee cannot be punished twice. The Petitioner had been punished once and dismissed from service. Thereafter, he was recruited once again in terms of the concluded settlement as a fresh appointee. That being so, it is not open to the Respondent to revive or resurrect the earlier charges again. The Respondents are estopped by conduct. Such an action is illegal, arbitrary and it cannot be allowed to be continued as the workman cannot be proceeded in respect of the same misconduct once over as he had already been punished and inflicted with the punishment of dismissal.

In the circumstances, the action of the Respondents is illegal and the impugned proceeding is quashed. The writ petition is allowed as prayed for. The parties shall bear their respective costs. Consequently, connected W.M.P. is closed.