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Judgment
D. Hariparanthaman, J.—The Petitioner is the same in both the writ petitions in W.P.(MD) Nos. 5598 of 2008 and 6048 of 2008 and he
was appointed as a Driver in Pudukkottai Depot of Pandiyan Roadways Corporation on 12.02.1980.
While he was driving a bus from Pudukkottai to Thanjavur on 24.01.1981, the bus involved in an accident at Thethuvasalpettai at 08.20 a.m.
and one pedestrian died due to the accident, when he got down from another bus, which was stationed on the road and the Petitioner over took
the stationed bus. At that time, the person, who got down from the bus crossed the road, without noticing the bus driven by the Petitioner came
behind the bus and thus the accident had occurred. The said pedestrian crossed the road from the side of the driver of the bus from which he got
down and since the Petitioner was not able to see the pedestrian and the pedestrian suddenly emerged in front of his bus, the accident had taken
place. This is the version of the Petitioner.
While so, the Pandiyan Roadways Corporation issued charge memo dated 01.04.1981, alleging that the Petitioner drove the bus rashly and
negligently on 24.01.1981 and caused the accident resulting in the death of a person. The Petitioner submitted his explanation, explaining the facts
as stated above. After conducting an enquiry, the Petitioner was dismissed by the then Pandian Roadways Corporation by an order dated
01.07.1982.
The Petitioner raised an Industrial Dispute regarding his non employment before the Conciliation Officer at Pudukkottai. The Marudhupandiyar
Transport Corporation, Pudukkottai, was shown as the Management in the conciliation proceedings. In the conciliation proceedings, the
Marudhupandiyar Transport Corporation never stated that he was not their employee. The Conciliation Officer sent his failure Report dated
30.08.1984 u/s 12(4) of Industrial Dispute Act to the Tamil Nadu Government. The Government passed G.O.Ms. No. 2269, Labour and
Employment Department, dated 24.10.1984, u/s 10 of the Industrial Dispute Act, declining to refer the industrial dispute for adjudication to the
Labour Court.
The Petitioner filed W.P.(MD) No. 3522/85, questioning the aforesaid order of the Government. In the said writ petition, the Marudhupandiyar
Transport Corporation was shown as a party. The said Corporation was represented by a counsel before this Court. The Marudhupandiyar
Transport Corporation did not plead before this Court in W.P.(MD) No. 3522/1985, that the Petitioner was not their employee.
On the other hand, they wanted to sustain the order of the Government, declining the reference on the ground that a fair enquiry was conducted
and a proper punishment was imposed. This Court quashed the Government Order and allowed the writ petition on 03.02.1994. The Government
was directed to refer the dispute to the Labour Court within a period of eight weeks from the date of receipt of a copy of that order. Pursuant to
the order of this Court referred to above, the Government passed G.O.Ms. No. 318, Labour and Employment Department, dated 11.04.1994,
referring the Industrial Dispute relating to the non employment of the Petitioner for adjudication to the Labour Court, Trichy. The G.O.Ms. No.
318 was issued on the ground that the Industrial Dispute regarding the non employment has arisen between the Marudhupandiyar Transport
Corporation and the Petitioner.
The Labour Court, Trichy took up the case on file in I.D. No. 45/1994 and the same was dismissed for default on 25.08.1994.
The Petitioner filed I.A. No. 238/1998 in I.D.No45/1994 to condone the delay in filing the application to set aside the order of the Labour
Court dismissing the ID for default. The labour Court passed an order on 02.06.2003, rejecting the I.A. No. 238/1998 in I.D. No. 45/1994.
The Petitioner filed W.P. No. 38096/2003 to quash the aforesaid order dated 02.06.2003 in I.A. No. 238/1998 in I.D. No. 45/1994 of the
Labour Court, Trichy and for directing the Labour Court to take I.D.45/1994 on its file and to dispose of the same on merits.
This Court allowed the W.P.(MD) No. 38096/2003 on 01.07.2005 and set aside the order dated 02.06.2003 in I.A. No. 238/98 and
restored the I.D. No. 45/1994 on file and the Labour Court was also directed to dispose of the I.D. within a period of three months from the date
of receipt of a copy of that order. However, this Court put a condition that in the event, the Petitioner succeeds before the labour Court, he would
not be entitled for back wages for the period from 03.02.1994 till the end of June 2005. After the ID was taken on file, the following Respondents
were impleaded as the Respondents 2,3, 4 and 5:
The Secretary,Transport Department, Fort St. George, Chennai.
Managing Director,Tamil Nadu State Transport Corporation, Kumbakonam Division, Kumbakonam.
The Regional General Manager, Tamil Nadu State Transport Corporation, (the then Marudhupandiyar Transport Corporation) Karaikudi.
The General Manager,Tamil Nadu State Transport Corporation, (Pandiyan Roadways Corporation, Pudukkottai Region) Pudukkottai.
When the litigations were going on, there were lot of changes in the name of the Transport Corporations owned by the Tamil Nadu
Government. Besides the change of names of the Corporations, amalgamations of Corporations took place. Marudhupandiyar Transport
Corporation having its Head Office in Karaikudi, became a part of Tamil Nadu State Transport Corporation, Kumbakonam Division, due to
amalgamation. The Tamil Nadu State Transport Corporation, Kumbaknoam Division was the amalgamated company comprises of various
corporations such as Cholan Roadways Corporation, Theeran Chinna Malai Roadways Corporation and Marudupandiyar Roadways Corporation
etc. Likewise Pandiyan Roadways Corporation was also amalgamated into Tamil Nadu State Transport Corporation Madurai Division and that
comprises of various corporations such as Kattabomman Transport Corporation and Nesamani Transport Corporation etc. While the third
Respondent was shown as the Tamil Nadu State Transport Corporation, Kumbakonam Division, their regional heads are shown as the first
Respondent and the 4th Respondent. The second Respondent is the Government that owns all the Corporations. The 5th Respondent was shown
as the then Pandiyan Roadways Corporation. The depot at Pudukkottai is still under the control of Tamil Nadu state Transport Corporation,
Madurai Division. These facts are stated based on the statement made by the learned Counsel for the Transport Corporations. Before the Labour
Court as well as before this Court, the same counsel represented for all the transport corporations.
Before the Labour Court, the Government was set ex-parte, as they did not represent.
As the first time, the Marudhupandiyar Transport Corporation took up the plea that the Petitioner was not employed by them and the
Corporation itself was formed on 01.04.1983, while the Petitioner was dismissed on 01.07.1982. The Marudhupandiyar Transport Corporation
never took such a plea hereinbefore. In the conciliation proceedings, they did not take such a plea. They sought to sustain the order of
Government, declining to refer the Industrial Dispute for adjudication by the Labour Court, when W.P.(MD) No. 3522 of 1985 was filed by the
Petitioner seeking reference. Later, when the Petitioner, filed W.P.(MD) No. 38096/2003 to set aside the order dated 02.06.2003 in I.A. No.
238/98 in I.D. No. 45/1994, the Marudhupandiyar Transport Corporation that was re-named as the Tamil Nadu State Transport Corporation,
Kumbakonam Division-III, Karaikudi also did not take such a plea.
The Respondents 1, 3 and 4 filed a common counter statement in I.D. No. 45/1994, after the I.D. was taken on file, pursuant to the order of
this Court referred to above wherein, they have stated that the Petitioner was not employed by the Marudhupandiyar Transport Corporation and
the Marudhu pandiyar Transport Corporation came into existence only on 01.04.1983, after the dismissal of the Petitioner.
The 5th Respondent filed a counter statement stating that Veeran Azhagu Muthu Kone, Transport Corporation came into existence on
16.03.1996 and the same is re-named as Tamil Nadu State Transport Corporation, Kumbakonam Limited, Pudukkotttai Division and that the
Petitioner was not employed by them. It is not known as to how this Corporation entered appearance, when it is categorically mentioned that the
Corporation that is meant by the 5th Respondent was the then Pandiyan Roadways Corporation.
Before the Labour Court, the Petitioner got examined himself as a witness and Exhibits W.1 to W.48 were marked on his side. On the side of
Corporations, two witnesses were examined. The first witness was examined on behalf of the Respondents/corporations 1,3 and 4 and the second
witness was examined on behalf of the 5th Respondent Corporation and documents Ex.M1 to M4 were also marked.
After hearing both sides, the Labour Court passed an award, exercising its power u/s 11-A of the Industrial Dispute Act, dated 21.01.2008 in
I.D. No. 45/1994, holding that the non employment of the Petitioner was not justified as the charges were not proved in the domestic enquiry.
The Labour Court also found that the termination order was passed by an incompetent person. Further more, the Labour Court held that the
Marudhupandiyar Transport Corporation, participated all along in the proceedings without any murmur for more than a decade, could not turn
around and state that the Petitioner was not its employee. The Labour Court held that since the Marudhupandiyar Transport Corporation
participated in the conciliation proceedings and also in the other proceedings, the contention that the Petitioner was not its employee is not
sustainable.
However, the Labour Court declined the back wages based on the order of this Court dated 01.07.2005 in W.P.(MD) No. 38096/2003.
The Petitioner has filed W.P. No. 6048/2008, seeking to quash the award dated 21.01.2008 made in I.D. No. 45/1994 insofar as depriving
the back wages is concerned. W.P. No. 5598/2008 is filed by the Petitioner, seeking for a direction, to implement the award. The Respondents
1,3, 4 and 5 Transport Corporations before the Labour Court are the Petitioners in W.P. No. 6478 of 2009 and these Transport Corporations
have sought to quash the award dated 21.01.2008 in I.D. No. 45/1994.
Heard both sides.
The learned Counsel appearing for the Transport Corporations in W.P. No. 6478 of 2009 has submitted that the Petitioner was not employed
by the Transport Corporations in W.P. No. 6478 of 2009. According to him, the Labour Court erroneously held that the writ Petitioners in
W.P.6478/09 are liable to reinstate the workman with continuity of service. The learned Counsel for the Transport Corporations also submitted
that the finding of the Labour Court on merits is also bad. However, he has not made any elaborate submissions on merits as to how the Labour
Court committed error in coming to the conclusion after analysing the evidence that the charges were not made out.
The learned Counsel for the workman has made the following submissions.
The order dated 01.07.2005 in W.P.38096 of 2003 of this Court deprived the workman''s back wages from 03.02.1994 to till the end of June
2005 and therefore, there is No. reason to deprive the wages prior to 03.02.1994 and also backwages from July 2005. That is, the Petitioner
claims backwages for the period 01.07.1982 to 03.02.1994 and for the period from 01.07.2005 till he reached the age of superannuation on
30.04.2008.
The learned Counsel for the Petitioner submits that all along the Marudhupandiyar Transport Corporation never took a stand that the Petitioner
was not its employee. The Marudhupandiyar Transport Corporation, participated in the conciliation proceedings at Pudukottai and in the said
conciliation proceedings, it did not take a stand that the Petitioner was not its employee. Thereafter, the Government passed G.O.Ms. No. 2269,
Labour and Employment Department, dated 24.10.1984, declining reference of the industrial dispute of non employment between the Petitioner
and Marudhupandiyar Transport Corporation for adjudication. The reference was declined on the ground that fair enquiry was conducted by the
Marudhupandiyar Transport Corporation and the dismissal is a proper punishment for causing death in an accident. When the Government Order
was questioned by the Petitioner by filing W.P.3522/1985, the Marudhupandiyar Transport Corporation was shown as a party. The
Marudhupandiyar Transport Corporation never stated before this Court that the Petitioner was not its employee.
On the other hand, the Marudhupandiyar Transport Corporation sought to sustain the order of the Government stating that they conducted fair
enquiry and that the dismissal was the proper punishment for the proved misconduct. Thereafter, this Court quashed G.O.Ms. No. 2269 and
directed the Government to make a reference. Then the Government passed another G.O.Ms. No. 318, Labour and Employment Department,
dated 11.04.1994, stating that the industrial dispute has arisen between the Marudhupandiyar Transport Corporation and the Petitioner, regarding
the non employment of the Petitioner and the dispute was referred for adjudication to the Labour Court, Trichy. When the dispute was taken on
file by the Labour Court in I.D. No. 45/1994, the same was dismissed for default on 25.08.1994.
The Petitioner sent a notice dated 08.07.1997 through one advocate to the Marudhu pandiyar Transport Corporation, claiming relief as per
the order dated 03.02.1994 in W.P. No. 3522/1985. The Marudhupandiyar Transport Corporation sent a reply dated 14.08.1997 informing the
Petitioner that the I.D. was dismissed for default on 25.08.1994. In that notice, it has not been also stated that the Petitioner was not its employee.
Pursuant to the order of this Court, the reference was made and that case was taken on file in I.D. No. 45/1994 and he failed to turn up to
prosecute the industrial dispute. Thereafter, the Petitioner belatedly, took steps to restore the industrial dispute on file and his efforts failed and the
Labour Court rejected his interim application. The matter was taken before this Court by filing W.P.38096/2003 seeking for a direction to restore
the I.D. on file and to set aside the order, refusing to restore the order of the Labour Court. This Court allowed the writ petition on 01.07.2005. In
the said writ petition also the Marudhupandiyar Transport Corporation did not state that the Petitioner was not its employee. After the I.D. was
restored on file, the Marudhupandiyar Transport Corporation took a plea that the Petitioner was not its employee.
In the circumstances, the Labour Court has held that the Marudhupandiyar Transport Corporation is estopped in making such a plea and also
held that the Petitioner was its employee. It is the submission of the learned Counsel for the workman that the Marudhupandiyar Transport
Corporation, could not take a plea now that they were not his employer. As far as the back wages are concerned, the learned Counsel for the
workman submitted that there is No. reason to deprive the back wages from 01.07.1982 to 03.02.1994 and thereafter from 01.07.2005. This
Court deprived the back wages only from 03.02.1994 to 30.06.2005 in the order dated W.P. No. 38096/2003. When the Labour Court held
that the charges were not established, there was No. reason to deprive the workman the wages, which he is entitled to.
I have heard the submissions made on either side.
As rightly contended by the learned Counsel for the workman, the Marudhupandiyar Transport Corporation never said for two decades in
various proceedings that the Petitioner was not its employee. After dismissal, the Petitioner took up the industrial dispute regarding non
employment before the Conciliation Officer, Pudukkottai, wherein the Marudhupandiyar Transport Corporation was shown as a party. The
Marudupandiyar Transport Corporation came into existence on 01.04.1983. The said corporation is also owned by the Tamil Nadu Government
and the Corporation was operating buses in Pudukkottai District. The Marudhupandiyar Transport Corporation participated in the Conciliation
proceedings. According to them, the Petitioner was not in possession of the driving license and therefore, he cannot be given employment. It was
not the case of the Marudhupandiyar Transport Corporation that the Petitioner was not their employee. Thereafter, the Government passed
G.O.Ms. No. 2269, Labour and Employment Department, dated 24.10.1984. The said order was passed by the Government u/s 10 of the
Industrial Dispute Act based on the failure report u/s 12(4) of the Industrial Dispute Act sent by the Conciliation Officer. The Government stated in
the order that the dispute relating to the non employment of the Petitioner arose between the Marudhupandiyar Transport Corporation and the
Petitioner and the Government has not inclined to refer the dispute for adjudication, as the Petitioner was dismissed by Mardhupandiyar Transport
Corporation, after a fair enquiry and the dismissal was a proper punishment for proved misconduct.
The same was questioned by the Petitioner by filing W.P. No. 3522/1985. In the said writ petition, the Marudhupandiyar Transport
Corporation was also shown as a party. The Marudhupandiyar Transport Corporation sought to sustain the order of the Government declining the
reference on the ground that they conducted fair enquiry before the dismissal and the dismissal was also a proper punishment. This Court allowed
the writ petition on 03.02.1994 and the Government was directed to refer the dispute for adjudication by the Labour Court. The Government
passed G.O.Ms. No. 318, Labour and Employment Department, dated 11.04.1994, u/s 10 of the Industrial Disputes Act, wherein it is stated that
an industrial dispute arose between the Petitioner and the Marudhupandiyar Transport Corporation and the dispute was referred for adjudication
by the Labour Court, Trichy. The dispute was taken on file by the Labour Court, Trichy in I.D. No. 45/1994, based on the reference. The
Petitioner did not appear before the Labour Court and hence, the I.D. was dismissed for default on 25.08.1994. Without knowing this, the
Petitioner sought certain relief from the Marudhupandyar Transport Corporation based on the order dated 03.02.1994 in W.P.3522/1985 by
sending a lawyer notice. The Marudhupandiyar Transport Corporation sent a reply stating that the I.D. was dismissed for default and hence, he
could not seek any relief. Thereafter, the Petitioner sought to restore the industrial dispute on file. But the Labour Court refused to restore the
same.
He approached this Court by filing W.P. No. 38096/2003. In W.P. No. 38096/2003, the Marudhupandiyar Transport Corporation was
shown as a party. The Marudhupandiyar Transport Corporation did not state that the Petitioner was not their employee. This Court restored the
I.D. on file by allowing the writ petition on 01.07.2005. After the I.D. was restored to file, the Marudhupandiyar Transport Corporation took a
plea that the Petitioner was not its employee. After two decades, the Marudhupandiyar Transport Corporation took a new plea that the Petitioner
was not its employee. This is not permissible. The Labour Court has correctly held that the Marudhupandiyar Transport Corporation could not be
permitted to take such a plea.
The Conciliation Failure Report (Ex.W.8), the order declining reference (EX.W.10), the order of this Court in W.P.3522/1985 (EX..W.38),
G.O.Ms. No. 318 referring the dispute (Ex.W.39), the notice sent by the counsel for the Petitioner seeking certain reliefs based on the order
passed in W.P.3522/1985 (Ex.W.13) and the reply sent by Marudupandiyar Transport Corporation that ID was dismissed (Ex.W.14) and the
order dated 01.07.2005 in W.P. No. 38096/2003 restoring the ID (Ex.W.42) are borne on record and in all those documents / proceedings,
Marudhupandiyar Transport Corporation never took a plea that the Petitioner was not its employee. Hence, I do not find any merits in the
submission that the Marudupandiyar Transport Corporation is not bound by the award.
The learned Counsel for the Transport Corporations has not specifically pointed out any infirmity in the award of the Labour Court on merits,
except stating that the Petitioner was not employed by Mardhupandiyar Transport Corporation and Veeran Azhagu Muthu Cone Transport
Corporation. In these circumstances, I am dismissing the writ petition filed by the Transport Corporations in W.P. No. 6478 of 2009.
As far as the writ petitions preferred by the workman is concerned, this Court declined the back wages from 03.02.1994 to 30.06.2005 as
the Petitioner was responsible for not proceeding with the industrial dispute, as per the order dated 01.07.2005 in W.P.38096/2003. But the
Petitioner could not be blamed for non prosecution of the industrial dispute between the period from 01.07.1982 to 03.02.1994. At the same time,
the Transport Corporation could also not be blamed for the delay as the matter was pending in this Court for about 10 years.
Hence, I am of the view that the Petitioner is entitled to 25% of the back wages from 01.07.1982 to 03.02.1994. Thereafter, there is No.
reason to deprive wages from 01.07.2005, particularly when the Labour Court has come to the conclusion that the charges were not made out.
Hence, I am inclined to allow W.P.(MD) No. 6048 of 2008 preferred by workman partly, by quashing the award dated 21.01.2008 in I.D. No.
45/1994, in so far as the entire depriving backwages from 07.01.1982 to 03.02.1994 and also after 01.07.2005. Tamil Nadu Transport
Corporation, Kumbakonam Division-III, Karaikudi is directed to pay 25% of the backwages from 01.07.1982 to 03.02.1994 and full wages
from 01.07.2005 to 30.04.2008, the date on which the Petitioner reached the age of superannuation. The Tamil Nadu Transport Corporation,
Kumbakonam Division-III, Karaikudi is directed to pay the backwages as mentioned above and the terminal benefits, within a period of eight
weeks from the date of receipt of a copy of this order.
In view of the aforesaid order, No. order is required in W.P. No. 5598 of 2008 and the same is closed and W.P.6048 of 2008 is partly
allowed, by quashing the award dated 21.01.2008 in I.D. No. 45/1994 passed by the Labour Court, Trichy, insofar as it deprived workman''s
entire back wages from 01.01.1982 to 03.02.1994 and from 01.07.2005 onwards and the same was modified with a direction to the Tamil Nadu
State Transport Corporation Kumbakonam Division III, Karikudi to pay 25% back wages from 01.07.1982 to 03.02.1994 and full wages from
01.07.2005 to till 30.04.2008, the date on which the Petitioner reached the age of superannuation, within a period of eight weeks from the date of
receipt of a copy of this order along with the terminal benefits. The writ petition in W.P. No. 6478 of 2009 preferred by the Transport
Corporations is dismissed. No. costs. Consequently, connected miscellaneous petitions are closed.