Challenging the award dated 7.12.2000, made in complaint No.18 of 1994, passed by the Industrial Tribunal, Chennai, Tamilnadu State Transport Corporation, (Villupuram-Division II) Limited, represented by its General Manager, Previously known as Pattukottai Azhagiri Transport Corporation, Vellore, has preferred the Writ Petition.
2. Short facts leading to the Writ Petition are as follows:
Pursuant to a disciplinary action taken, the second respondent was terminated from service on 30.4.1994. Being aggrieved by the same, he filed a complaint No.18 of 1994 under
section 33-A of the Industrial Disputes Act, 1947, contending inter alia that since an Industrial Dispute in I.D.No.62 of 1982 with regard to the bonus and additional ex-gratia to be paid to the Transport workers was already pending on the file of the Industrial Tribunal and therefore the Management ought to have obtained approval from the Tribunal, after the order of termination. In this complaint, he has further submitted that, as the Management had failed to file an approval application and to satisfy the mandate under
Section 33 (2)(b)(3) of the Act and therefore the termination of the complainant is not justified and consequently prayed for a direction to the respondent to reinstate him in service with backwages and continuity. Though the relief sought for was opposed on many grounds, the Transport Corporation resisted the complaint on the grounds inter-alia that it was formed only on 1.12.1982 and that it was not a party to I.D.No.62 of 1982. The Writ petitioner Corporation also contended that there was no necessity to obtain an approval. The complaint made by the second respondent was also opposed on merits of the case. The maintainability of the complaint was disputed.
3. The Industrial Tribunal, which entertained the complaint under
section 33-A of the Industrial Disputes Act upon adjudication, found that there was lack of evidence and that the enquiry officer had proceeded on assumptions. All the charges were not substantiated and accordingly, the order of termination was set aside. In the result, the first respondent ordered that the workman to be reinstated in service with continuity and other attendant benefits. Being aggrieved by the award, the State Transport Corporation has filed the present Writ Petition.
4. Placing reliance on the award made in Industrial Dispute No.62 of 1982, dated 6th March, 1997 and pointing out that the writ petitioner, Transport Corporation was very much a party to the said dispute, Mr.Ajoy Khose, Learned Counsel for the second respondent contended that once the writ petitioner is a party to an Industrial Dispute, then for dismissal or discharge or otherwise for any misconduct not connected with the respondent for which the workman was terminated, the writ petitioner Management ought to have paid wages for one month and should have filed an application to the Industrial Tribunal, I.D.No.62 of 1982, which was pending for approval of the action taken by the employer namely, the Transport Corporation.
5. Placing reliance on the decisions of Supreme Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Limited Vs. Ram Gopal Sharma and others reported in 2002 (2) Supreme Court Cases 244 and a decision of this Court in C.Ramanujam, Chengai District Vs. (1) Presiding Officer, Industrial Tribunal, Madras (2) Mangement of Pattukottai Azhagiri Transport Corporation, Vellore reported in 2003 (4) L.L.N.117, learned counsel for the second respondent submitted that as the employer had failed to adhere to the mandatory provision, there is no need to traverse into the merits of the case and it suffice to consider the maintainability of the writ petition on that aspect. Learned Counsel for the writ petitioner, though attempted to sustain the impugned award on merits, is not in a position to dispute that the Corporation was not a party to the Industrial Dispute No.62/82.
6. Heard the learned counsel appearing for the parties and perused the materials available on records.
7. Perusal of the award made in I.D.No.62/82, dated 6th March 1997 shows that the Government of Tamilnadu in G.O.Ms.No.2616, Labour and Employment Department, dated 10.12.1982 have referred a dispute under
section 10(1)(d) of the industrial Disputes Act, 1947 to the Tribunal to adjudicate the following issue;
"Whether the bonus declared and paid by the management for the year 1981-82 in accordance with the payment of Bonus Act 1965 and the additional ex-gratia paid by the management is justified? If not, to determine the relief under the payment of Bonus Act, 1965."
8. The order further shows that Originally 18 Managements and 107 trade unions were involved in the dispute. As per orders passed in M.A.No.115 of 1985 dated 22.7.1985 the Managing Director, Dheeran Chinnamalai Transport Corporation Ltd., Trichy has been impleaded as the 19th Management.
9. It is the contention of the writ petitioner Management that the Corporation was formed only on 1.12.1982 and that they were not party to the original dispute in I.D.No.62 of 1982 and therefore, there is no necessity to obtain approval. Such a contention cannot be countenanced, in view of the fact that the Managing Director, Pattukottai Alagiri Transport Corporation limited, Vellore was already a party before I.D.No.62 of 1982 and that they are arrayed as respondent No.18 in the dispute. The complaint made under
section 33-A filed by the second respondent-workman would not have been entertained, if there was no pending industrial dispute between the parties namely, the Management of the Corporation and the workmen represented by the Union.
Section 33 (2) (b) reads as follows:
" 33 (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)--
(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."
Section 33-A reads as follows:
"33-A. Special provision for adjudication as to whether conditions of service, etc., changed during pendency of proceedings.-- Where an employer contravenes the provisions of
section 33 during the pendency of proceedings before a conciliation officer, Board, an arbitrator, Labour Court, Tribunal or National Tribunal, any employee aggrieved by such contravention, may make a complaint in writing, in the prescribed manner,--
(a) to such conciliation officer or Board, and the conciliation officer or Board shall take such complaint into account in mediating in, and promoting the settlement of, such industrial dispute; and
(b) to such arbitrator, Labour Court, Tribunal or National Tribunal and on receipt of such complaint, the arbitrator, Labour Court, Tribunal or National Tribunal, as the case may be, shall adjudicate upon the complaint as it were a dispute referred to or pending before it, in accordance with the provisions of this Act and shall submit his or its award to the appropriate Government and the provisions of this Act shall apply accordingly."
10. In Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma, reported in (2002) 2 SCC 244, at Paragraphs 6, 13, 14 and 15, the Supreme Court held as follows:
"6. ...........The object behind enacting
Section 33, as it stood before it was amended in 1956, was to allow continuance of industrial proceedings pending before any authority/court/tribunal prescribed by the Act in a peaceful atmosphere undisturbed by any other industrial dispute. In course of time, it was felt that unamended
Section 33 was too stringent for it placed a total ban on the right of the employer to make any alteration in conditions of service or to make any order of discharge or dismissal even in cases where such alteration in conditions of service or passing of an order of dismissal or discharge, was not in any manner connected with the dispute pending before an industrial authority. It appears, therefore, that
Section 33 was amended in 1956 permitting the employer to make changes in conditions of service or to discharge or dismiss an employee in relation to matters not connected with the pending industrial dispute. At the same time, it seems to have been felt that there was need to provide some safeguards for a workman who may be discharged or dismissed during the pendency of a dispute on account of some matter unconnected with the dispute. This position is clear by reading the redrafted expanded
Section 33.13. The proviso to
Section 33(2)(b), as can be seen from its very unambiguous and clear language, is mandatory. This apart, from the object of
Section 33 and in the context of the proviso to
Section 33(2)(b), it is obvious that the conditions contained in the said proviso are to be essentially complied with. Further, any employer who contravenes the provisions of
Section 33 invites a punishment under
Section 31(1) with imprisonment for a term which may extend to six months or with fine which may extend to Rs.1,000 or with both. This penal provision is again a pointer of the mandatory nature of the proviso to comply with the conditions stated therein. To put it in another way, the said conditions being mandatory, are to be satisfied if an order of discharge or dismissal passed under
Section 33(2)(b) is to be operative. If an employer desires to take benefit of the said provision for passing an order of discharge or dismissal of an employee, he has also to take the burden of discharging the statutory obligation placed on him in the said proviso. Taking a contrary view that an order of discharge or dismissal passed by an employer in contravention of the mandatory conditions contained in the proviso does not render such an order inoperative or void, defeats the very purpose of the proviso and it becomes meaningless. It is well-settled rule of interpretation that no part of statute shall be construed as unnecessary or superfluous. The proviso cannot be diluted or disobeyed by an employer. He cannot disobey the mandatory provision and then say that the order of discharge or dismissal made in contravention of
Section 33(2)(b) is not void or inoperative. He cannot be permitted to take advantage of his own wrong. The interpretation of statute must be such that it should advance the legislative intent and serve the purpose for which it is made rather than to frustrate it. The proviso to
Section 33(2)(b) affords protection to a workman to safeguard his interest and it is a shield against victimization and unfair labour practice by the employer during the pendency of industrial dispute when the relationship between them is already strained. An employer cannot be permitted to use the provision of
Section 33(2)(b) to ease out a workman without complying with the conditions contained in the said proviso for any alleged misconduct said to be unconnected with the already pending industrial dispute. The protection afforded to a workman under the said provision cannot be taken away. If it is to be held that an order of discharge or dismissal passed by the employer without complying with the requirements of the said proviso is not void or inoperative, the employer may with impunity discharge or dismiss a workman.
14. Where an application is made under
Section 33(2)(b) proviso, the authority before which the proceeding is pending for approval of the action taken by the employer has to examine whether the order of dismissal or discharge is bona fide; whether it was by way of victimization or unfair labour practice; whether the conditions contained in the proviso were complied with or not etc. If the authority refuses to grant approval obviously it follows that the employee continues to be in service as if the order of discharge or dismissal never had been passed. The order of dismissal or discharge passed invoking
Section 33(2)(b) dismissing or discharging an employee brings an end to the relationship of the employer and employee from the date of his dismissal or discharge but that order remains incomplete and remains inchoate as it is subject to approval of the authority under the said provision. In other words, this relationship comes to an end de jure only when the authority grants approval.If approval is not given,nothing more is required to be done by the employee, as it will have to be deemed that the order of discharge or dismissal had never been passed. Consequence of it is that the employee is deemed to have continued in service entitling him to all the benefits available. This being the position there is no need of a separate or specific order for his reinstatement. But on the other hand, if approval is given by the authority and if the employee is aggrieved by such an approval, he is entitled to make a complaint under
Section 33-A challenging the order granting approval on any of the grounds available to him.
Section 33-A is available only to an employee and is intended to save his time and trouble inasmuch as he can straightaway make a complaint before the very authority where the industrial dispute is already pending between the parties challenging the order of approval instead of making efforts to raise an industrial dispute, get a reference and thereafter adjudication. In this view, it is not correct to say that even though where the order of discharge or dismissal is inoperative for contravention of the mandatory conditions contained in the proviso or where the approval is refused, a workman should still make a complaint under
Section 33-A and that the order of dismissal or discharge becomes invalid or void only when it is set aside under
Section 33-A and that till such time he should suffer misery of unemployment in spite of the statutory protection given to him by the proviso to
Section 33(2)(b). It is not correct to say that where the order of discharge or dismissal becomes inoperative because of contravention of proviso to
Section 33(2)(b),Section 33-A would be meaningless and futile. The said section has a definite purpose to serve, as already stated above, enabling an employee to make a complaint, if aggrieved by the order of the approval granted.
15. The view that when no application is made or the one made is withdrawn, there is no order of refusal of such application on merit and as such the order of dismissal or discharge does not become void or inoperative unless such an order is set aside under
Section 33-A, cannot be accepted. In the view of this Court, not making an application under
Section 33(2)(b) seeking approval or withdrawing an application once made before any order is made thereon, is a clear case of contravention of the proviso to
Section 33(2)(b). An employer who does not make an application under
Section 33(2)(b) or withdraws the one made, cannot be rewarded by relieving him of the statutory obligation created on him to make such an application. If it is so done, he will be happier or more comfortable than an employer who obeys the command of law and makes an application inviting scrutiny of the authority in the matter of granting approval of the action taken by him. Adherence to and obedience of law should be obvious and necessary in a system governed by rule of law. An employer by design can avoid to make an application after dismissing or discharging an employee or file it and withdraw before any order is passed on it, on its merits, to take a position that such order is not inoperative or void till it is set aside under
Section 33-A notwithstanding the contravention of
Section 33(2)(b) proviso, driving the employee to have recourse to one or more proceedings by making a complaint under
Section 33-A or to raise another industrial dispute or to make a complaint under
Section 31(1). Such an approach destroys the protection specifically and expressly given to an employee under the said proviso as against possible victimization, unfair labour practice or harassment because of pendency of industrial dispute so that an employee can be saved from hardship of unemployment."
11. In paragraphs 7 and 8 of the decision in C.Ramanujam, Chengai District Vs. (1) Presiding Officer, Industrial Tribunal, Madras (2) Mangement of Pattukottai Azhagiri Transport Corporation, Vellore reported in 2003 (4) L.L.N.117, this Court at paragraph 7 and 8 of the Judgement has held as follows:
"7. I have considered the submissions of the learned counsel for the petitioner as well as the management. It is settled proposition of law that the Supreme Court while interpreting law, it is open to the Supreme Court to declare the law prospectively under
Art.141 of the constitution of India. However, if the Supreme Court does not specifically lay down in the Judgement itself that it will have only prospective effect, it is not open to any party to contend that the judgment cannot apply to a case, which arose for consideration prior to the declaration of law by the Supreme Court. Unless and otherwise the Supreme Court declares it positively in the judgment itself that it will apply only prospectively, it is not possible to infer that the judgment of the Supreme Court cannot be applied to a case, which arose for consideration before the said Judgment. In Baburam Vs. C.C.Jacob and other (1999 (3) L.L.N.26) (vide supra), the Supreme Court observed that the purpose of prospective declaration is to avoid reopening of settled issues and to prevent multiplicity of proceedings. Therefore in the absence of a specific declaration to give effect to the judgment only prospectively, the judgment is bound to apply to pending cases also. In Jaipur Zila Sahakari Bhoomi Vikas Bank, Ltd., V. Ram Gopal Sharma and others (2002 (1) L.L.N.639) (vide supra), there is no such specific declaration by the Supreme Court that the said judgment will operate only prospectively. Therefore, I am unable to sustain the contention of the learned counsel for the management.
8. With the result, the judgment reported in 2002 (1) L.L.N. 639 (vide supra) is applicable to the facts of the present case. Therefore the dismissal order of the management without approval is not valid in law and the petitioner is entitled to succeed. Accordingly, part of the award of the Industrial Tribunal, Tamil Nadu, dated 31 July 1995, made in Complaint No.5 of 1990 depriving back-wages is set aside and the writ petition is allowed. No costs."
12. Placing reliance on a decision of this Court in Muthiah v. The Management of Seethalakshmi Mills reported in 2004 (1) CTC 310, by way of Writ Petition, the petitioner therein questioned the award of the Industrial Tribunal, dismissing his complaint, made under Section 33(A) of the Industrial Disputes Act, which was filed challenging the order of his dismissal from service, on the grounds that I.D.Nos.1, 2 and 3 of 1993 were already pending, on the file of the Tribunal and therefore, the Management ought to have obtained approval under
Section 33 (2) (b) of the Industrial Disputes Act. The Management opposed the Writ Petition on the ground that a detailed enquiry had already been conducted into serious charges, which were issued on the basis of the alleged involvement of the petitioner therein, in a Murder case and that too, the Executive Director of the first respondent therein-Mill. The charge also related to unauthorised absence and failure to report for duty. Though the petitioner, who was arrayed as A5 in the criminal case was convicted under
Section 302 r/w. 34 of IPC., lateron the conviction and sentence was modified by the Division Bench of this Court, for four years, as the offences under
Section 302 and
109 IPC were not made out. He was convicted for an offence of unlawful assembly and causing damage to the windscreen of the car, in which the deceased Executive Director was travelling. Though the petitioner was dismissed from service, the Management did not file any application under Section 33(2)(b) of the Industrial Dispute Act. Despite the conviction for four years, this Court, having regard to the mandatory requirement under the statute, held that the order of dismissal as invalid and inoperative from the date, when it was passed. Instead of reinstating the petitioner therein, this Court ordered only compensation from the date of dismissal till the date of award.
13. In The Management of Rane Brake Linings Ltd., v. Presiding Officer, Industrial Tribunal, reported in 2004 (3) CTC 515, the challenge was with regard to the termination of a workman, without obtaining the approval from the Industrial Tribunal, before, whom, an Industrial dispute was pending. After considering the mandatory requirement of compliance of approval under
Section 33(2)(b) of the Act, this Court held that though the order of discharge or dismissal de facto may be passed by the employer, that would remain inchoate till the order of approval from Tribunal is obtained before whom dispute is pending. The order of termination has been held as null and void, for want of approval of the Industrial Tribunal.
14. In The Management of K.V.B. Ltd., v. Presiding Officer, Industrial Tribunal, reported in 2007 (2) CTC 305, a clerk was proceeded on certain charges and after conducting an enquiry, he was dismissed from service. On the date of dismissal, a dispute regarding bonus between the bank and its workmen, was pending. The clerk, second respondent therein, filed a complaint under
Section 33A, alleging that no approval as contemplated under
Section 33 (2) (b) of the Act was obtained, before the dismissal from service. The Industrial Tribunal passed an award, setting aside the order of Management, holding that the charges as not proved. The correctness of the award was challenged in this Court. Following the decision in Jaipur Zila Sahakari Bhoomi Vikas Bank Limited Vs. Ramgopal Sharma's case (cited supra), this Court rejected the case of the Management on merits, holding that the approval of the competent authority as contemplated under
Section 33(2)(b) of the Industrial Disputes Act, was not obtained before the order of dismissal, even though an earlier dispute was pending adjudication.
15. Whenever a complaint is made under
Section 33(A), by an aggrieved workman, as the case may pending adjudication of another dispute not connected to the misconduct, for which the punishment of discharge, dismissal or otherwise, is sought to be imposed an approval under
Section 33(2)(b), has to be obtained by the Management. The Industrial Tribunal is enjoined with a duty, to arrive at a prima facie conclusion, as to whether before awarding the punishment or changing the service condition, the Management has complied with the mandate of law. If the order of termination does not satisfy the mandate, the Industrial Tribunal has to set aside the punishment at the threshold. In the case on hand, though the petitioner has raised a plea of non-compliance of
Section 33(2)(b), the Tribunal has failed to advert to the same.
16. In view of the law declared by the Supreme Court, and followed by this Court as stated supra, this Court is of the view that there can be no valid order of termination of the second respondent from service without an approval as required under
Section 33 (2) (b) of the Industrial Dispute Act, 1947. Therefore without going into the merits of the case, this Court is of the view that the writ petition has to fail, as there is a violation of the mandate as required under law. Hence the writ petition is dismissed.
17. During the Course of arguments, learned counsel for the second respondent brought to the notice of this Court that even before filing of this Writ Petition, by order dated 26.3.2001 of the General Manager, the second respondent has been reinstated in service as Conductor, as fresh entrant. He has further submitted that the second respondent has also attained the age of superannuation and was relieved from service on the afternoon of 31.12.2008 and in view of the pendency of the present Writ Petition, his pensionary benefits, backwages and other attendant benefits have not been settled so far. Now that the writ petition filed by the management against the award made in Complaint No.18 of 1994, dated 7.12.2000 is dismissed, the writ petitioner Transport Corporation shall compute the backwages and other allowances due and payable to the writ petitioner, as if he was not terminated on 30.4.1994 and consequently work out the pension, backwages and other retiral benefits, within a period of three months from the date of receipt of the copy of this order, after deducting a sum of Rs.50,000/- in which the second respondent had received the amount towards arrears of backwages during the pendency of this Writ Petition. With the above directions, the Writ Petition is dismissed. No costs.
aes Sd/-
Asst. Registrar //True Copy// Sub Asst. Registrar To The Presiding Officer, Industrial Tribunal, Chennai.
+ 1 cc to M/s. King & Partridge, Advocate SR No.68352 + 1 cc to Mr. V.Ajay Khose, Advocate SR No.68567 PA(CO) SR/3.2.2010 W.P.No.16766 of 2001