The order of the first respondent in Approval Petition No.43 of 2004, dated 01.08.2005, is under challenge in this Writ Petition, filed by the Tamil Nadu State Transport Corporation (in short, "the Corporation"), in and by which the approval for dismissal of the second respondent from the service of the Corporation was rejected.
2. According to the petitioner, the second respondent was appointed as a Helper on daily wages on 16.05.1994 in the Corporation in its Tindivanam Branch; he was unauthorisedly absent from duty from 10.01.2003 and caused dislocation of normal work; hence, a charge memo was issued to him and explanation was called for from him; as the explanation was not satisfactory, a domestic enquiry was conducted following the principles of natural justice; in the enquiry, it was held that the charges against the second respondent had been proved; taking into account the past record of service, second show cause notice was issued to him, proposing the punishment of dismissal from service and, as the explanation of the second respondent was not satisfactory, he was dismissed from service by an order, dated 14.01.2004.
3. It is also the case of the petitioner that as an industrial dispute between the management and the unions was pending before the first respondent, the Corporation filed a petition under Section 33 (2) (b) of the Industrial Disputes Act (in short, "the Act") in Approval Petition No.43 of 2004, seeking approval for dismissal of the second respondent, but the first respondent, without proper appreciation of the facts and circumstances of the case, rejected the said application by an order, dated 01.08.2005. Hence, this Writ Petition.
4. The stand of the second respondent is that he worked with the petitioner Corporation for more than eight years as Helper and was doing only clerical work on the basis of the recommendation of the Medical Board, but, the Branch Manager had given him yard work in contravention of the recommendation of the Medical Board; accordingly, on 04.01.2003, when he was asked to remove and fit the rear wheel of a bus, his left shoulder joint slipped and his right shoulder joint also got affected; on 05.01.2003, he asked for a weekly off and leave from 06.01.2003, to which he gave leave application in person, but he was marked absent and, even on 26.09.2003, the day on which the enquiry was said to have been conducted, he was on Medical Leave.
5. The further case of the second respondent is that though he submitted his explanation to the charges levelled against as well as to the provisional conclusions for his removal from service, the petitioner Corporation removed him from service on 14.01.2004 and sought for approval from the first respondent, who, came to the conclusion that the petitioner Corporation had not come to a bona fide conclusion for the dismissal, as the Corporation had not considered the explanation given to the show cause notice and, therefore, no exception can be taken to the order of the first respondent and the Writ Petition is liable to be dismissed.
6. Learned counsel for the petitioner would contend that the first respondent, having held that the domestic enquiry was conducted following the principles of natural justice and that there was a prima facie case before the Enquiry Officer, ought to have granted approval for the action taken by the Corporation against the second respondent. She also contends that the mandatory provisions of
Section 33 (2) (b) of the Act have been complied with by the Corporation before dismissing the second respondent and, therefore, the order passed by the first respondent, rejecting the approval, is illegal and liable to be quashed. In support of her contention, the learned counsel has cited a Division Bench decision of this Court in W.A.No.2196 of 2005 and W.P.No.27801 of 2005, dated 14.02.2006, wherein it has been held as under :
"8. It is submitted on behalf of the appellant herein that the workman himself did not raise a grievance regarding the opportunity to cross-examine. In fact, the case of the workman before the Tribunal is only that his witness was not cross-examined by the Management. Therefore, the conclusion of the Joint Commissioner of Labour that the enquiry is vitiated because the Enquiry Officer did not permit the workman to let in evidence does not appear to have any basis. In view of the above, the consequential conclusion of the Joint Commissioner that a prima facie case has not been made out is also baseless.
9. In these circumstances, since we hold that the appellant has substantially complied with the mandatory requirement of payment of one month's wages to the workman, we send back the matter to the Joint Commissioner of Labour to consider the question of grant of approval in the light of the judgment of the Supreme Court referred to above and examine, whether a proper domestic enquiry in accordance with the relevant rules and standing orders has been held ;
whether the principles of natural justice have been followed ;
whether a prima facie case has been made out ;
whether the conclusion that the workman is guilty is bona fide ;
whether it does not amount to unfair labour practice or victimisation."
7. Conversely, learned counsel for the second respondent would argue that the order of the first respondent, declining to grant approval for dismissal of the second respondent from the service of the petitioner Corporation, is well within the law.
8. I have heard the learned counsel for the parties and also gone through the records.
9. The whole issue in this petition revolves around
Section 33 (2) (b) of the Act. So, it is useful to extract the said Section, which reads as under :
"33.Conditions of service etc., to remain unchanged under certain circumstances during pendency of proceedings.-
(1) xxxx (2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman-
(a) xxx
(b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman :
Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer."
10. The Supreme Court, in Lalla Ram v. D.C.M. Chemical Works Ltd., 1978 (3) SCC 1, after considering its various earlier decisions, framed certain guidelines regarding the manner in which the Industrial Tribunal should exercise its jurisdiction in proceedings under
Section 33 (2) (b) of the Act. The said guidelines are as under :
"12.The position that emerges from the abovequoted decisions of this Court may be stated thus: In proceedings under
Section 33(2)(b) of the Act, the jurisdiction of the Industrial Tribunal is confined to the enquiry as to (i) whether a proper domestic enquiry in accordance with the relevant rules/Standing Orders and principles of natural justice has been held; (ii) whether a prima facie case for dismissal based on legal evidence adduced before the domestic tribunal is made out; (iii) whether the employer had come to a bona fide conclusion that the employee was guilty and the dismissal did not amount to unfair labour practice and was not intended to victimise the employee regard being had to the position settled by the decisions of this Court in Bengal Bhatdee Coal Co. v. Ram Prabesh Singh6, Titaghur Paper Mills Co. Ltd. v. Ram Naresh Kumar7, Hind Construction & Engineering Co. Ltd. v. Their Workmen8, Workmen of Messrs Firestone Tyre & Rubber Company of India (P) Ltd. v. Management9 and Eastern Electric & Trading Co. v. Baldev Lal10 that though generally speaking the award of punishment for misconduct under the Standing Orders is a matter for the management to decide and the Tribunal is not required to consider the propriety or adequacy of the punishment or whether it is excessive or too severe yet an inference of mala fides may in certain cases be drawn from the imposition of unduly harsh, severe, unconscionable or shockingly disproportionate punishment; (iv) whether the employer has paid or offered to pay wages for one month to the employee and (v) whether the employer has simultaneously or within such reasonably short time as to form part of the same transaction applied to the authority before which the main industrial dispute is pending for approval of the action taken by him. If these conditions are satisfied, the Industrial Tribunal would grant the approval which would relate back to the date from which the employer had ordered the dismissal. If however, the domestic enquiry suffers from any defect or infirmity, the labour authority will have to find out on its own assessment of the evidence adduced before it whether there was justification for dismissal and if it so finds it will grant approval of the order of dismissal which would also relate back to the date when the order was passed provided the employer had paid or offered to pay wages for one month to the employee and the employer had within the time indicated above applied to the authority before which the main industrial dispute is pending for approval of the action taken by him."
11. Keeping the above guidelines in mind, in this case, the first respondent/Joint Commissioner of Labour, has dealt with the matter point by point. Though the Joint Commissioner has held the points that the enquiry was conducted according to the principles of natural justice and as per the Standing Orders and that there was evidence for a prima facie case before the Enquiry Officer, with regard to the issue whether the employer had come to a bona fide conclusion that the employee was guilty and the dismissal did not amount to unfair labour practice and was not intended to victimise the employee, the Joint Commissioner has held that the employee, in his explanation to the charges, which is marked as Ex.A-10, had stated that his shoulder joints were affected as he was asked to do yard work instead of office work as advised by the Medical Board, and that he had availed a weekly holiday and subsequently applied for leave. The said contention was reiterated by the employee in his counter to the application, seeking approval for his dismissal. The fact of the matter was that the Corporation had not placed before the Enquiry Officer the explanation given by the employee to the charges framed against him.
12. A perusal of the dismissal order issued by the Corporation, dismissing the employee from its services, marked as Ex.A-17, makes it clear that the Corporation had not at all considered the explanation given by the employee that he had availed the weekly off and also applied for leave. The non-consideration of the explanation of the employee for the charges framed against him while dismissing from service is suggestive of an inference that the whole disciplinary action initiated by the Corporation against the employee is not bona fide. Accordingly, the Joint Commissioner held that while dismissing the employee, the Corporation had not come to a bona fide conclusion that the employee was guilty and, therefore, the dismissal amounts to unfair labour practice and was intended to victimize the employee.
13. As regards the point whether the employer/ Corporation has paid or offered to pay wages for one month to the employee, the Joint Commissioner has held that in the application for approval, the Corporation stated that a sum of Rs.6,287/- was paid to the employee at the time of his dismissal. No proof of such payment was produced before the Joint Commissioner. The Corporation had filed a Pay Slip, Ex.A-18, of the employee, which indicated that one month wages of the employee were Rs.6647.30. But, the Corporation had paid a sum of Rs.6,287/- to the employee at the time of his dismissal. This amount was lesser than Rs.6647.30. Therefore, the Corporation had not paid to the employee an amount equal to his one month's wages at the time of his dismissal. However, subsequent to the filing of the application seeking approval for dismissal of the employee, the Corporation had sent to the employee a sum of Rs.360/-, which was supposed to be the disputed allowance in monthly salary. Rs.6,287/- and Rs.360/- would aggregate to Rs.6647/-. Even assuming that the Corporation was entitled to pay the difference in one month's salary to the employee after the filing of the application seeking approval, the said amount was again lesser than one month's wages of the employee by 30 paise. Therefore, at the time the Corporation dismissed the employee, it did not pay to him his exact one month's salary. As such, a part of the proviso clause to
Section 33 (2) (b) was not complied with by the Corporation.
14. Adverting to the issue whether the employer had simultaneously or within such reasonably short time as to form part of the same transaction applied to the authority before which the main industrial dispute is pending for approval of the dismissal of the employee, the Joint Commissioner held that the Corporation had complied with that part of the mandatory conditions contained in
Section 33 (2) (b).
15. Since the first respondent, namely, Joint Commissioner of Labour has dealt with the matter in detail point by point following the guidelines enunciated by the Supreme Court in Lalla Ram's case, cited supra, giving cogent reasons, and refused to accord approval for dismissal of the second respondent for the reasons that while dismissing the employee the Corporation had not come to a bona fide conclusion that the employee was guilty and, therefore, the dismissal amounted to unfair labour practice and was intended to victimize the employee/second respondent and that the Corporation had not complied with the mandatory provisions of
Section 33 (2) (b) of the Act regarding the payment of one month's wages to the employee at the time of his dismissal, by no stretch of imagination, it can be said that the impugned order suffers from infirmity or illegality.
16. The order of the Division Bench cited by the learned counsel for the petitioner in W.A.No.2196 of 2005 and W.P.No.27801 of 2005, dated 14.02.2006, cannot be made applicable to this case, the reason being that the facts and findings of the said case are not the same as in the present case.
17. Therefore, the order of the first respondent, declining to grant approval for dismissal of the second respondent from the service of the petitioner Corporation under
Section 33 (2) (b) of the Act, is well founded and perfectly justified. As such, this Writ Petition is dismissed. No costs. Consequently, the connected W.P.M.P.No.17092 and W.V.M.P.No.1501 of 2006 and W.P.M.P.Nos.2846 and 2847 of 2007 are closed dixit To The Joint Commissioner of Labour, (Conciliation), D.M.S.Compound, Teynampet, Chennai 6