Management of Surat Goods Transport Service vs Deputy Commissioner of Labour (Appeals), Madras and Others

S.J. Mukhopadhaya, J.—This appeal has been preferred by the Management of Surat Goods Transport Service (hereinafter referred to as management) against the judgment, dated October 23, 2003, passed by die learned Single Judge in W.P. No. 3559 of 1997 (reported in 2003 (4) LLN 1122). By the said order, learned Single Judge upheld the order, dated March 22, 1996, passed by the appellate authority under the provisions of Tamil Nadu Payment of Subsistence Allowance Act, 1981 (hereinafter referred to as the Act, 1981).

As the appeal can be disposed of on a short point, it is not necessary to discuss all the facts except the relevant one as mentioned hereunder:

(i) The third Respondent/Petitioner, Sri A.K. Muraleedharan, who is in the services of the management in Chennai was asked to attend the office at Bombay. According to the management, after receiving a sum of Rs. 1000 (Rupees One thousand only) on November 27, 1993 towards advance and T.A., the third Respondent/Petitioner had applied leave and without furnishing any leave address absented himself from duty since November 29, 1993. The said amount received towards advance and T.A., was also not utilized for the purpose of travelling to the Bombay Office. A charge-sheet was issued by letter No. SGTS/CHN/23/93-94/1335 dated January 27, 1994, wherein apart from unauthorized absence from duty since November 29, 1993, other charges were also levelled against him.

(ii) On the other hand, according to the third Respondent/Petitioner, he was on leave from November 29, 1993 and reported for duty on January 3, 1994. But the authorities prevented him from performing his duty. A petition under the Act, 1981, was preferred by the third Respondent/Petitioner atleast for grant of subsistence allowance for the period from January 3, 1994. The appellate authority vide order, dated March 22, 1996, had come to the conclusion that the third Respondent/Petitioner was prevented from performing the duty from January 3, 1994 and taking into consideration of the subsequent initiation of the departmental proceedings directed to pay subsistence allowance.

(iii) The management had challenged the said order and filed a writ petition. The learned Single Judge had noticed the definition of suspension u/s 2(g) of the Act, 1981 which means an interim decision of an employer as a result of which an employee is debarred temporarily from attending to his office and performing his functions in the establishment on the ground that an enquiry into grave charges against him is contemplated or is pending or no final order after the completion of the enquiry has been passed. There are other grounds requiring to suspend an employee. In view of such provisions, learned Single Judge upheld the decision of the appellate authority, dated March, 22, 1996, and dismissed the writ petition. Challenging the same, this writ appeal is preferred by the management.

We have noticed the rival contentions to the parties, relevant provisions of law and also noticed the charges framed and communicated by the letter, dated January 27, 1994. It is informed that in view of the definite finding given in the order passed by the appellate authority followed by the order passed by the learned Single Judge, that the third Respondent/Petitioner was prevented from duty, the departmental proceedings could not be completed. The question, whether the third Respondent/Petitioner was unauthorizedly absent from November 29, 1993 without furnishing leave address with the motive of defeating the interest of the company, which is one of the charges communicated by letter, dated January 27, 1994, is to be determined by the enquiry officer and we are of the view that the appellate authority and the learned Single Judge had exceeded in their jurisdiction by pre-empting the issue and determining the question whether he was on un-authorized absence from duty or was prevented to perform such duty. It was open to the third Respondent/Petitioner to take appropriate defence in the departmental proceedings to show that he was on leave from November 29, 1993 to January 2, 1994 by leading proper evidence in his support and it was also open to him to prove that he was prevented to perform duty since January 3, 1994.

(i) In view of the fact that in regard to this disputed issue, no finding has been given by the enquiry officer and we have observed that it was not open to the appellate authority or learned Single Judge to decide such issue pre-empting the departmental proceedings, we have no other option but to set aside the order, dated March 22, 1996, passed by the appellate authority under Act, 1981 and the judgment, dated October 23, 2003, passed by the learned Single Judge in W.P. No. 3559 of 1997 (reported in 2003 (4) LLN 1122).

(ii) As it is informed that the departmental proceedings could not be taken up because of the order passed by the appellate authority and the learned Single Judge, we remit the case with a direction to the management to conclude the departmental proceedings in accordance with law after due notice and hearing the third Respondent/Petitioner preferably within a period of three months from the date of production of a copy of this order.

(iii) The third Respondent/Petitioner is directed to appear before the enquiry officer and may take all defences as taken before the appellate authority and this Court. On failure, it is open to the enquiry officer to proceed ex parte in accordance with law. If the third Respondent/Petitioner reports the management office at Madras within fifteen days, the management will pay the salary for the period he will attend the office, so that the Petitioner may defend his case in the departmental proceedings.

(iv) The question relating to payment of wages for the period from 29 November, 1993, or that of the subsequent period from January 3, 1994 is to be determined by the management taking into consideration of the report as may be submitted by the enquiry officer, after the completion of the departmental proceedings.

The writ appeal is allowed with the aforesaid observations and directions. However, there shall be no order as to costs. The connected miscellaneous petition is closed.