E.MANIKANDAN Vs. MANAGEMENT OF INDIA

JUDGEMENT

(1.) THE present writ petition has been filed under Article 226 of the Constitution of India for the issuance of a writ of certiorarified mandamus to call for the records of the respondents relating to the order of the 2nd respondent dated 06.09.2001 placing the petitioner under suspension, quash the same and direct the respondents to accord full wages and all consequential and attendant benefits to the petitioner for the period of his illegal suspension and to confer permanency to him.

(2.) MR .V.Prakash, learned Senior Counsel appearing for the petitioner/employee, by highlighting the factual scenario, would submit that the petitioner joined the service on 24.03.1998 in the respondent/company, which is engaged in the manufacture of Main Frames and Silencers for TVS Motorcycles at its Production Unit located in Hosur, as a Trainee and that though no written appointment order was issued at the time of joining, he was placed on probation with effect from 24.03.1999 for a period of one year. In the Unit of the respondent started during 1996 -97, about 180 employees were working. The petitioner is an active member of the Dharmapuri District Periyar Dravida Kazhakam and, in the respondents/Factory, they did not have any genuine trade union representation. While so, one Ilavarasan sent a letter on 29.11.2000, to the Deputy Chief Inspector of Factories, Hosur, seeking permanency for the 180 workers engaged in the Manufacturing Unit of the respondents. Subsequently, between 05.01.2001 and 10.01.2001, permanency was conferred on 60 employees, of whom, 10 were juniors to the petitioner. According to the learned senior counsel, since the petitioner and 19 other workmen attended the hoisting of the Flag of the Kazhakam at TVS Main Road in December, 2000, actuated by malice, the respondent/Management, despite the fact that those workmen had already completed their period of probation, issued orders on 02.03.2001, extending their probation upto 30.06.2001. While so, the petitioner was issued with a letter, dated 19.02.2001, containing the allegation that he absented himself from duty from 10.02.2001 without prior permission/intimation. Immediately, the petitioner gave a reply on 20.02.2001 explaining that he had to take leave as his father was very sick and further, he had informed the Management about the situation through a co -employee. Apart from that, the petitioner had also given a leave application, expressing his regret for not having sought permission in writing. It is highlighted by the learned Senior Counsel that though the petitioner had completed his extended period of probation on 30.06.2001, the Management did not confirm him in service and hence, he moved an application under the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 (in short 'Act'), before the Deputy Chief Inspector of Factories, Salem, seeking permanency on the basis that he fulfilled the statutory requirement of completion of continuous service of 480 days in 24 calendar months. Very unfortunately, by the impugned order, the petitioner was suspended only because of the reason that he had moved the Authority under the Act seeking permanency. According to the learned Senior Counsel, the only intention behind passing the impugned order is that the management wants to send a clear warning to the other similar workmen to face the same consequence if they also insists upon conferment of permanency. In fact, the same modus operandi was adopted in the case of two other co -workers who sought for permanency. During the pendency of their applications for permanency, the Management victimized them and terminated their services on 06.09.2001 so as to make their applications infructuous. Learned senior counsel added that this type of conduct and attitude on the part of the Management clearly depicts that a grim and monstrous situation was created by them against the workmen, who sought for enforcement of their right of permanency in their employment. In order to sustain his argument regarding maintainability of the writ petition, learned counsel referred to a decision of the Apex Court in UP State Coop. Land Development Bank Ltd. v. Chandra Bhan Dubey (1999 (1) SCC 741) and Voltas Volkart case (2002 (1) CTC 184) and added that the relief sought for may be granted on the sole ground that the order of suspension passed by the management against the petitioner is arbitrary and abuse of the disciplinary powers vested in the authority. To accept his prayer for issuance of a writ against the private Management, learned Senior Counsel placed reliance upon a ruling of the Apex Court in Rohtas Industries Ltd. v. Rohtas Industries Staff Union (1976 (2) SCC 82) and highlighted the proposition laid down therein to the effect that the expansive and extraordinary power of the High Court under Article 226 of the Constitution of India is as wide as the amplitude of the language used indicates and so can affect any person, even a private individual and be available for any other purpose and even one for which another remedy may exist; the amendment to Article 226 inserting Article 226 (1A) reiterates the targets of the writ power as inclusive of any person by the expressive reference to 'the residence of such person'; but, it is one thing to affirm the jurisdiction, another authorise its free exercise like a bull in a china shop; and the mentor of law is justice and a potent drug should be judiciously administered. Citing the case law reported in 2005 (6) SCC 657 (Binny Ltd. v. Sadasivan), learned Senior Counsel highlighted the ratio that a writ of mandamus or the remedy under Article 226 pre -eminently being a public law remedy and available against a person or body performing a public law function, a writ can also be issued against any private body or person, specially in view of the words used in Article 226 of the Constitution of India. According to him, in the present case, the impugned suspension order came to be passed as a punitive measure for the petitioner's moving the authority under the Act seeking permanency on his probation being extended without any rhyme or reason and unjust rejection of his repeated requests. In other words, when it is the bounden duty of the Management to confer permanent status to the employee subsequent to the completion of continuous service for the stipulated period by the employee, evasive attitude only reflects that the Management has committed a serious lapse which undoubtedly warrants interference by this Court by exercising its wide powers under Article 226 of the Constitution of India to grant the relief and to undo the effect of the suspension order passed with ulterior motives to punish the petitioner in moving the authority under the Act to get his grievance redressed. Learned Senior Counsel further submitted not to accept the version of the respondents that the proceedings were initiated against the petitioner only on the basis of the the complaint given by a co -employee against the petitioner stating that the petitioner had abused and intimidated him for refusing to join the Union, for, the fact remains that the petitioner was not issued with any charge sheet or communication relating to the enquiry with reference to such alleged incident. So submitting, ultimately, he pleaded for grant of the relief sought for by allowing the writ petition.

(3.) I find considerable force in the submission made by the learned counsel for the respondents. In fact, an identical case was dealt with by myself while deciding W.P. No.35016 of 2002 by Order dated 05.09.2012, wherein, the learned counsel for the petitioners therein referred to judgment of the Apex Court in Andi Mukta S.M.V.S.S.J.M.S. Trust v. V.R.Rudani (1989 (2) SCC 691) to highlight the position that the law relating to mandamus has made the most spectacular advance and added that, therefore, it is not legally tenable for the respondents to say that prerogative writ of mandamus is confined only to public authority to compel performance of public duty. It was the grievance of the petitioners in that case that, in the previous cases wherein decision was made against the workmen regarding maintainability, was because of the reason that Andi Mukta's case was not brought to the notice of the Benches that dealt with the matters and therefore, for the lapse on the part of the court in not being aware of the decision in Andi Mukta's case, the petitioners cannot be penalised. Thus, insisting upon this Court to go in line with Andi Mukta, he had sought for issuance of a writ in the said case which was similar on legal issue to that of the present case. It would be of much relevance to quote below the observations made therein,