R. Egamparam vs The Secretary, Ministry of Shipping, The Chairman and The Controller of Stores, Chennai Port Trust

R. Subbiah, J.—This writ petition is filed by the petitioner, party-in-person, for the issuance of a writ of Certiorari to call for the records of

the 1st respondent dated 21.02.2007 in No. C-16018/7/2005-PE-II and quash the same and also to grant an interim order directing the

respondents to issue full backwages for the suspension period i.e. from 26.12.2002 to 17.01.2003.

According to the petitioner, he was working as the Stores Supervisor under the 3rd respondent Chennai Port Trust and he was served with a

charge memo with suspension order dated 26.12.2002 alleging that the petitioner was not present at his appointed place of work after signing the

attendance register at 10.00 Hours on 26.12.2002 and left the office and did not return to his seat till 13.25 Hours and this constituted misconduct

on his part punishable under Clause 4(18) of the Madras Port Trust Employees ''(Conduct) Regulations, 1987 and accordingly, he was placed

under suspension. A domestic enquiry was conducted and the Enquiry Officer gave his finding on 16.12.2004 stating that the charges framed

against him were proved and a punishment of withholding of two increments for one year with cumulative effect was imposed as per the Madras

Port Trust Employees'' (Classification Control and Appeal) Regulation, 1988. Aggrieved over the same, the petitioner preferred an appeal on

11.02.2005 before the 2nd respondent, whereby the punishment was modified as to withhold one increment for one year with cumulative effect,

by order dated 17.05.2005. Challenging the same, the petitioner filed a review petition on 06.06.2005 before the 1st respondent, Ministry of

Shipping. Since there was no response, he approached this Court by way of writ petition in W.P. No. 29775 of 2003 challenging the charge

memo with suspension order, wherein this Court, by an order dated 28.07.2006, directed the 1st respondent to dispose the review petition filed

by the petitioner within a period of twelve weeks. In pursuance of the said order, the 1st respondent, by an order dated 21.02.2007, dismissed the

review petition filed by the petitioner and confirmed the order of the 2nd respondent dated 17.05.2005. Not being satisfied with the order of the

1st respondent, the preset writ petition is filed.

The petitioner would submit that the suspension order was passed by the Controller of Stores, who is not the competent authority to pass the

said order and on that ground, the punishment imposed on the petitioner is liable to be set aside. That apart, the petitioner, by inviting the attention

of this Court to various documents, such as copy of receipt register, copy of despatch register, copy of movement register, contended that the

allegation levelled against him on the ground that he was not present in the place of work from 10.00 to 13.25 Hours on 26.12.2002, is not

correct. Further, he would submit that his request to have an assistance in the enquiry proceedings was turned down by the authorities and the said

denial amounts to violating the principles of natural justice. Hence, the impugned order is liable to be quashed and consequently, the respondents

have to be directed to pay the backwages pertaining to the period from 26.12.2002 to 17.01.2003.

Per contra, the learned Counsel for the 2nd and 3rd respondents would submit that the petitioner is coming under the category of workman u/s

2(s) of the Industrial Disputes Act and hence, he has to seek relief only before the Labour Court irrespective of violation of any Rules in conducting

the enquiry. Further, it is incorrect to say that the enquiry was conducted in violation of the principles of natural justice. During the enquiry

proceedings, the petitioner has not stated that he was present at the work spot and therefore, the submission made by the petitioner, by relying

upon the various documents, that he was present at the works pot cannot be accepted. Further, the learned Counsel would submit that the

Chairman of the Port Trust can delegate powers under the Port Trust Employees (CCA) Regulation, 1988 to issue the disciplinary proceedings. In

the instant case also, only after obtaining the sanction, the disciplinary proceedings were initiated and the punishment was imposed. Therefore, the

contention of the petitioner that the order passed by the third respondent is not legally sustainable, cannot be accepted. Further, the petitioner was

permitted to have the assistance of one V.K. Balakrishnan, an office bearer of the Trade Union and also the General Secretary of the Railway

Employees'' Trade Union to defend his case. Hence, it is incorrect to say that he was not permitted to have the assistance to defend.

Heard the learned Counsel for the parties and perused the materials available on records.

The petitioner was issued with a charge memo dated 26.12.2002 alleging that on the same day, he was not present at his appointed place of

work after signing the attendance register at 10.00 Hours and left the office and did not return to his seat till 13.25 Hours, which constituted a

''misconduct'' under Clause 4(18) of the Madras Port Trust Employees'' (Conduct) Regulations, 1987. Per contra, it is the case of the petitioner

that he was present at the work spot on 26.12.2002 at 10.00 Hours and therefore, the contents of the charge memo are not correct. In support of

his contention, the petitioner has relied upon several documents such as despatch register, receipt register, movement register, etc. I am of the view

that the question involved in the writ petition is a mixed questions of facts and law, which cannot be decided in this writ petition. With regard to the

submission made by the petitioner that the 3rd respondent has no authority to impose punishment on the employees, it could be seen from Clause

10 and 11 of the Madras Port Trust Employees'' (Classification, Control and Appeal), Regulation, 1988 that the Chairman is having authority to

institute disciplinary proceedings against any employee and also to direct a disciplinary authority to institute disciplinary proceedings against any

employee. Since there is a power of sub-delegation, the punishment order passed by the 3rd respondent cannot be found fault with. Further, it

could be seen from the Schedule of Employees (Stores Department) that the post of the petitioner, namely, ''Stores Supervisor'' falls under class

III. According to the respondents, the employees mentioned in class 3 will come under the category of ''workman''; but contrary to the same, a

submission was made by the petitioner that as per the provisions of the Industrial Disputes Act, he cannot be construed as a ''workman''. But the

fact that he was the President of the Union would show that he will be coming under the category of ''workman'' and as per Schedule, his post is

coming under class 3. Under such circumstances, I am of the opinion that the issue raised by the petitioner cannot be agitated in this writ

proceedings since mixed questions of facts and law are involved, which need a detailed enquiry. Therefore, this writ petition is liable to be

dismissed and the petitioner is at liberty to raise the dispute before the appropriate forum as against the punishment imposed on him.

For the reasons stated above, the writ petition is dismissed. No costs. Consequently, connected M.Ps. are closed.