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2013 DIGILAW 1612 (MAD)

R. Egamparam v. Deputy Chairman Chennai

2013-04-10

T.RAJA

body2013
Judgment :- 1. Heard the petitioner/party-in-person and the learned counsel for the respondents 1 and 2. 2. The writ petitioner-Mr.R.Ekambaram appearing party-in-person originally filed W.P.No.19591/2007 challenging the correctness of the suspension order dated 3.11.2006 placing him under suspension with immediate effect until further orders under relevant provision of Para 7(1)(b) Part IV of Madras Port Trust employees'(Classification, Control and Appeal)Regulations, 1988. During the pendency of the Writ Petition, the disciplinary authority, on completion of the enquiry on the charges found in the charge sheet dated 15.12.2006, accepting the report of the enquiry officer, disagreeing with his reply dated 12.10.2007, finding him guilty of charges, issued an order of punishment of compulsory retirement from the Trust service as per Regulation 8(b)(vii) of the Madras Port Trust Employees CCA Regulation 1988 with immediate effect. In the said order the petitioner was also informed to prefer an appeal to the Deputy Chairman, Appellate Authority, against that order within a period of two months from the date of receipt of the said order. (ii) During the pendency of the writ petition, the appeal filed by the petitioner challenging the order of punishment of compulsory retirement was also dismissed by order dated 29.2.2008. As against the order of punishment of compulsory retirement passed by the disciplinary authority, as confirmed by the appellate authority in their orders dated 19.11.2007 and 29.02.2008 respectively, the petitioner should have raised an industrial dispute by approaching the Labour Court as the Chennai Port Trust is an "industry" and the petitioner is a "workman" covered under section 2(s) of the Industrial Disputes Act 1947. In this context, it is pertinent to extract sections 2(s) and 2A of the Industrial Disputes Act 1947s which are as follows: "2(s) "workman" means any person (including an apprentice) employed in any industry to do manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person- i) who is subject to the Air Force Act, 1950(45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957(62 of 1957);or ii) who is employed in the police service or as an officer or other employee of a prison;or iii) who is employed mainly in a managerial or administrative capacity;or (iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature." "2-A.(1) Dismissal, etc., of an individual workman to be deemed to be an industrial dispute.- Where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workmen, any dispute or difference between that workman and his employer connected with, or arising out of such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute. (2) Where no settlement is arrived at in the course of any conciliation proceeding taken under this Act in regard to an industrial dispute referred to in sub-section (1), the aggrieved individual workmen may apply, in the prescribed manner, to the Labour Court for adjudication of such dispute and the Labour Court shall proceed to adjudicate such dispute, as if, such dispute has been referred to it for adjudication and accordingly all the provisions of this Act relating to adjudication of industrial disputes by the Labour Court shall apply to such adjudication." A conjoint reading of sections 2(s) and 2-A of the Act clearly shows that an aggrieved individual workman by any order finding no settlement is arrived in the course of any conciliation proceeding taken under this Act in regard to an industrial dispute referred to in sub-section (1) should apply to the Labour Court for adjudication of such dispute as he has not raised any industrial dispute before the Labour Court. Admittedly, in the present case, the petitioner/party-in-person has not approached the Labour Court and has wrongly come to this court by filing writ petition under Article 226 of the Constitution of India, hence, this Court cannot espouse the writ petition inasmuch as the Hon'ble Division Bench of this Court in the judgment in TAMIL NADU STATE TRANSPORT CORPORATION (COIMBATORE DIVISION I) LTD., COIMBATORE REP.BY ITS M.D., FORMERLY KNOWN AS CHERAN TRANSPORT CORPORATION V. RATHINASAMY AND ANOTHER (2005 II LLJ 1141), has held as under in para 4: "4. Despite the clear decisions of the Supreme Court and of this Court a practice has developed in many High Courts in the country of directly filing writ petitions in the High Court alleging violation of Section 25-F of the Industrial Disputes Act. This practice cannot be approved or encouraged otherwise there will be flood of such litigations in the High Courts. It is well settled that if there is an alternative remedy the parties must ordinarily avail of it and not rush directly to the High Courts under Article 226 of the Constitution of India. Following the aforesaid decisions both the writ appeals are allowed and the impugned judgment is set aside. It is open to the writ petitioners to raise an industrial dispute under the Industrial Disputes Act, and if they do so the same will be decided expeditiously. Following the aforesaid decisions both the writ appeals are allowed and the impugned judgment is set aside. It is open to the writ petitioners to raise an industrial dispute under the Industrial Disputes Act, and if they do so the same will be decided expeditiously. Consequently WAMP Nos.717 and 718 of 2005 are closed." (iii) Further, the submission made by the petitioner/party-in-person that being a Ministerial Staff he need not go to Labour Court and on the other hand, he can come to this Court by filing Writ Petition is also not legally acceptable. Section 2a(i) of the Act clearly covers any industrial dispute concerning any industry carried on by a major port. Therefore, the petitioner is a "workman" as covered under section 2(s) of the Act. Hence, he has to approach only the Labour Court challenging the order of punishment of compulsory retirement. In view of that, it is open to him to raise an industrial dispute under the Industrial Disputes Act, 1947 if he is so advised. 3. With this observation, W.P.No.19591/2007 stands dismissed. No costs. Consequently, connected pending M.P.Nos.1/2007, 2/2007, 2/2008, 3/2012, 4/2012 and 1/2013 are dismissed.