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Judgment
Honourable Mr. Justice K. Chandru
The petitioner was employed as a reserve driver by the respondent State owned Corporation at the Headquarters at Trichirapalli. In the present writ petition, the petitioner has sought for a direction to permit him to join duty and also to pay wages from 29.06.2010.
In this writ petition, notice of motion was ordered on 19.08.2010 and on notice, the respondent has filed a counter affidavit, dated 28.04.2011.
The facts leading to the filing of the writ petition are as follows:
3.1. The petitioner was appointed as a reserved driver by an order dated 14.09.2009. In the said order, it was stated that the petitioner will be bound by the standing orders, general rules. In paragraph 7 of the appointment order, it was stated that in case, his services was not satisfactory, he will be sent out without any advance notice. In paragraph 8, it was stated that when permanent vacancies arise on the basis of seniority, he will be appointed on daily wage worker as per the Government Order. The petitioner was directed to join duty on 20.09.2009.
3.2. Accordingly, the petitioner joined duty and was working as a driver on daily wages of Rs. 179/-per day. He was allotted to Dheeran Nagar Branch at Trichy. However, the petitioner was subsequently posted to the Manapparai Branch. While, he was driving the bus in the route from Manapparai to Trichy on 26.06.2010, when the bus was taken from Manapparai to Trichy, near Andavarkoil which is 2 kms away from Manapparai, the bus met with an accident. It dashed against mini van which was carrying goats. Due to the sudden crossing of the mini van, the accident took place. In that accident three persons are injured and a woman passenger who was coming in the bus standing in the foot board due to the sudden brake fell into the road and got injured. A case was registered in Manaparai Police Station in Crime No. 320 of 2010 against the petitioner. On 28.06.2010, the bus was taken to the office of the Motor Vehicle Inspector for testing and thereafter, it was driven to the Dheeran Nagar Branch.
3.3. When the petitioner went for duty on 29.06.2010 but he was denied employment. The petitioner informed that only after getting orders from the headquarters, he will be given employment. Subsequently, the petitioner met the General Manager on 30.06.2010. He was asked to come after few days but till date no employment was given. Therefore, he sent a representation, dated 30.06.2010 by a registered post to the General Manager and thereafter, filed the present writ petition.
In the counter affidavit filed, it was stated that even while as a reserved driver the petitioner had caused an accident and was facing a criminal action. One of the passengers travelled in the van died due to the accident. The criminal case filed was altered into one of 304-A IPC. The corporation had lost Rs. 14,000/-towards damages. Totally 10 persons were injured and two persons have died in the accident including the person who travelled in the van. The Branch Manager reported that it was due to the rash and negligent driving of the petitioner, the accident had happened. Therefore, the Corporation decided to invoke paragraph 7 of the appointment order, dated 14.09.2009. Curiously, at paragraph 5 of the counter affidavit, it was stated that the rules and regulations of the standing orders of the Corporation are not applicable for a reserved driver.
This stand of the respondent is diametrically opposite to the terms of the appointment order, dated 14.09.2009. More particularly to paragraph 2 of the said appointment order where it has been clearly stated that the petitioner was governed by the standing orders and general rules and he will abide by the rules and regulations of the Corporation. It is rather unfortunate that the person in the rank of a General Manager should make such careless averments alleging non application of the standing orders to the petitioner.
In the light of the rival pleading it has to be seen whether the petitioner''s request made in the writ petition can be countenanced by this Court?
Notwithstanding the status of the petitioner, the first question is whether the standing orders are applicable? In this context, it is necessary to refer the judgment of the Supreme Court wherein it has been held that insofar as the term Workman, under the Industrial Disputes Act u/s 2(s) is concerned, there is no distinction between the temporary, permanent etc.,
7.A The Supreme Court in the judgment in Devinder Singh Vs. Municipal Council, Sanaur, , held that the Act do not make any distinction between permanent or temporary worker and once the person completes 240 days of service and if the procedure for dispensing was not followed, the court is right in ordering reinstatement. A reference was made to paragraph 13 of the said judgment, which reads as follows:
The source of employment, the method of recruitment, the terms and conditions of employment/contract of service, the quantum of wages/pay and the mode of payment are not at all relevant for deciding whether or not a person is a workman within the meaning of Section 2(s) of the Act. It is opposite to observe that the definition of workman also does not make any distinction between full-time and part-time employee or a person appointed on contract basis. There is nothing in the plain language of Section 2(s) from which it can be inferred that only a person employed on a regular basis or a person employed for doing whole-time job is a workman and the one employed on temporary, part time or contract basis on fixed wages or as a casual employee or for doing duty for fixed hours is not a workman.
In the order of the appointment itself, the petitioner management is clearly stated that the standing orders are applicable to the petitioner in paragraph 2, though they now sought to disown it in the counter affidavit. Even otherwise, when an industrial establishment, if the standing orders are certified in terms of the Industrial Employment (Standing Orders) Act, 1946, no new term of appointment or contract can be read into those standing orders cannot be got over. It is necessary to refer to a judgment of the Supreme Court in Western India Match Company Ltd. Vs. Workmen, . The Supreme Court held that while the standing orders are in force, it is not permissible for the employer to introduce new terms into the contract of service. Such new contract of service will have no application. In paragraph 8, it was held as follows:
If a prior agreement, inconsistent with the Standing Orders will not survive, an agreement posterior to and inconsistent with the Standing Order should also not prevail. Again, as the employer cannot enforce two sets of Standing Orders governing the classification of workmen, it is also not open to him to enforce simultaneously the Standing Order regulating the classification of workmen and a special agreement between him and an individual workman settling his categorization.
Therefore, reliance placed upon the paragraph 7 of the appointment order will have no force so as to exclude the certified standing orders applicable to the workman.
When once, it is found that the certified standing orders are applicable to workman, whether temporary, permanent or otherwise. Then in case of simple termination which is non application, the employee can be sent out only after due notice but in case of any misconduct the employer is bound to conduct an enquiry into the misconduct by framing specific charges and also follow procedure provided under the Certified Standing Orders. In the present case, such an action was not taken by the management. A reading of the counter affidavit will clearly show that it was only due to the accident for which the petitioner was terminated and for doing so, the report of the Branch Manager was also relied upon. When the action of the employer is based upon a clear misconduct, then there is no other option for them except to conduct an enquiry before proceeding to dispense with the services of the workman even if, he was a temporary employee. In the present case, the petitioner had worked for nearly one year. He also has an assurance of being taken into regular employment. After serving a period of one year, they cannot be simply told that too without a written order that he will not be allowed to enter into service of the Corporation.
An employee of the public sector Corporation enjoys a status and he cannot be treated as a mere contractual employee as held by the Supreme Court in Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress and Others, . In paragraph 202, it was observed as follows:
202...It is now well settled that the ''audi alteram partem'' rule which is essence, enforces the equality clause in Article 14 of the Constitution is applicable not only to quasi-judicial orders but to administrative orders affecting prejudicially the party-in question unless the application of the rule has been expressly excluded by the Act or Regulation or Rule which is not the case here. Rules of natural justice do not supplant but supplement the Rules and Regulations. Moreover, the Rule of Law which permeates our Constitution demands that it has to be observed both substantially and procedurally. Considering from all aspects Regulation 9(b) is illegal and void as it is arbitrary, discriminatory and without any guidelines for exercise of the power. Rule of law posits that the power is to be exercised in a manner which is just, fair and reasonable and not in an unreasonable, capricious or arbitrary manner leaving room for discrimination.
Even in cases of temporary employee, if his termination was found to be based upon misconduct, the Supreme Court, vide its judgment in Agra Electric Supply Co. Ltd. Vs. Sri Alladdin and Others, has held that in such cases, an enquiry is mandatory. It is necessary to refer to the following passage found in Paragraph 15 which is as follows:
Now, it is a well-settled principle of industrial adjudication that even if an impugned order is worded in the language of a simple termination of service, Industrial Tribunals can look into the facts and circumstances of the case to ascertain if it was passed in colourable exercise of the power of the management to terminate the service of an employee and find out whether it was in fact passed with a view to punish him. The letter of appointment clearly states that the workman, Shameem Khan, was appointed as a probationer for a period of 6 months with power to the resident engineer to extend the period of probation. Ordinarily, that would mean that at the end of the probation period the company would have to decide whether to confirm him to a permanent post or, if that is not possible, to terminate his service. Standard Order 2(c) provides that a probationer is an employee who is provisionally employed to fill a permanent vacancy in a post and who has not completed the period of probation there under. It also lays down that the normal period of probation shall be 6 months but the resident engineer has the discretion to extend that period, the maximum period of probation being 12 months in all. Ordinarily, this would mean that a probationer''s service cannot be terminated except for some misconduct until the expiry of the probation period. The letter of appointment, no doubt contained a provision that the service of the workman was liable to termination even during the probationary period. That provision, however, must be read to mean that the appointment was subject to the management''s power of termination as provided in the standing orders. Standard Order 14 provides for such a power and lays down that the service of ''any employee'' (which expression includes a probationer as is clear from the classification of employees in Standard Order 2) can be terminated on grounds (a) to (f) there in set out. It is quite clear that the termination of service of the concerned workman cannot be attributed to any one of these grounds. There fore, that order cannot be said to have been passed inconformity with the power to terminate his service under the standing orders.
Under the said circumstances, this Court is inclined to allow the writ petition. Hence, the writ petition stands allowed. The respondents are directed to restore the petitioner into service, within a period of two weeks from the date of receipt of a copy of this order. If necessary any enquiry is to be conducted, they can always to resort the provisions under the Certified Standing Orders which are applicable to the petitioner. This order will not prevent the respondents from exercising their power in terms of Certified Standing Orders. But any action shall be taken only in accordance with law. For the interregnum period, since the petitioner was prevented from reporting to duty and his services were forcibly stopped, he is also eligible for the wages at the rate at which payable to him immediately before the stoppage of his work. No costs. Consequently, connected miscellaneous petitions are closed.