THE HONOURABLE MR v. The Presiding Officer, Labour Court, Vellore.2. The Management of Ambur Co-operative Sugar

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 28.02.2005CORAM:THE HONOURABLE MR.JUSTICE V.KANAGARAJW.P. Nos.18968 & 18969 of 1996R. Rajabather... Petitioner in both the W.Ps.Vs.1. The Presiding Officer, Labour Court, Vellore.2. The Management of Ambur Co-operative Sugar Mills Ltd., Vadaputhupet, Ambur, North Arcot Ambedkar District.... Respondents inboth the W.Ps.* * *Writ Petitions filed under Article 226 of the Constitutionof India praying for the reliefs as stated therein.* * *For petitioner : Mr. N.G.R. Prasad for M/s. Row and Reddy. For respondent-2 : Mr. N. Balasubramanian* * *COMMON ORDERWrit Petition No.18968 of 1996 has been filed praying toissue a writ of certiorarified mandamus calling for the recordsof the first respondent relating to I.D. No.17 of 1992 and quashthe award dated 13.9.1993 and direct the second respondentmanagement to give the petitioner all the benefits and awardcosts. 2. Writ Petition No.18969 of 1996 has been filed praying toissue a writ of certiorarified mandamus calling for the records https://hcservices.ecourts.gov.in/hcservices/ of the first respondent relating to Complaint No.4 of 1987,quash the award dated 13.9.1993 passed in Complaint No.4 of 1987and direct the second respondent management to give thepetitioner all the benefits and award costs. 3. The case of the petitioner is that he joined theservices of the second respondent Management as a Fieldman andwas later promoted as Cane Assistant and in the year 1971, thepetitioner was promoted as a Senior Cane Assistant. In the year1983, the petitioner was issued with a charge sheet allegingcertain misconduct and the second respondent conducted a farceenquiry against the petitioner and passed an order demoting thepetitioner as a Junior Cane Assistant for a period of two years.As against the order of punishment, the petitioner raised anindustrial dispute before the Labour Court, Madras in I.D.No.679 of 1984 and upon the formation of the first respondentLabour Court at Vellore, the same was renumbered as I.D. No.17of 1992. While so, when the dispute regarding the demotion ofthe petitioner was pending before the first respondent LabourCourt, on 31.12.1986, the second respondent Management issuedyet another charge sheet against the petitioner alleging certainother misconducts and consequently, on 11.8.1987, it dismissedthe petitioner from service, without even filing a petitionbefore the Labour Court for approving their action in dismissingthe petitioner from service. As against the order of dismissal,the petitioner filed a departmental appeal before the ManagingDirector of the second respondent Mills on 26.8.1987, but by anorder dated 14.11.1987, the said appeal was dismissed by thesecond respondent Management. On 17.11.1987, the petitionerfiled Complaint No.4 of 1987 against the second respondentManagement for having contravened the provisions contained inSection 33 of the Industrial Disputes Act, 1947. Thereupon, theManagement filed Approval Petition No.1 of 1989 before theLabour Court, seeking approval of the dismissal order passed bythem against the petitioner, but the Labour Court rejected thesaid petition by its order dated 29.3.1989 and the secondrespondent Management filed Writ Petition No.5857 of 1989against the order of the Labour Court passed in ApprovalPetition No.1 of 1989. However, this Court, by order dated26.6.1990, disposed of the said writ petition with a directionto the Labour Court to take up the complaint after giving properopportunity to the second respondent Management within a periodof eight weeks. Ultimately, on 13.9.1993, the Labour Courtdismissed I.D. No.17 of 1992 as well as Complaint No.4 of 1987.Hence the writ petitions. 4. During arguments, the learned counsel appearing onbehalf of the petitioner would submit that the labour courtdecided whether the enquiry held by the secondrespondent/management was fair and proper, but it did not go https://hcservices.ecourts.gov.in/hcservices/ into the question whether the charges were proved based on thematerials and punishment imposed by the management was justifiedand commensurate with the charges; that the labour court hasfailed to see that the management has not taken approval afterdismissing the petitioner when admittedly the dispute relatingto demotion was pending; that the labour court has erred indismissing the complaint No.4/87 filed against the dismissalorder merely on the ground that the dispute relating to demotionwas dismissed by him; that merely because the labour courtdismissed the dispute relating to demotion, it does not followthat the dismissal order passed by the management isjustified; that the complaint is not maintainable; that theprovisions of Section 33(2)(b) application was not filedsimultaneously and one month's notice pay was not given; thatSection 33(2)(b) violation has got to be decided even if themain industrial dispute is disposed of; that the dismissal isvoid because approval was not applied for immediately. Insupport of these arguments, the learned counsel would cite twojudgments reported in 1963(1) LLJ 679 (P.H.Kalyani v. AirFrance) and (ii) 1965 (2) LLJ 128 (Tata Iron and Steel v.S.N.Modak).5. So far as the first judgment cited above is concerned,it is held therein:"The main point which was raised in this appealis now concluded by the Strawboard ManufacturingCompany Ltd., - Vs. - 1962 (1) L.L.J. 420. ThisCourt has held in that case that, "the proviso toSec.33(2)(b) contemplates the three thingsmentioned therein, namely -(1)dismissal or discharge(2)payment of wages and (3)making of an application for approval.To be simultaneous and to be part of the sametransaction so that the employer when he takesthe action under Sec.33(2) by dismissing ordischarging an employee, should immediately payhim or offer to pay him wages for one month andalso make an application to the tribunal forapproval at the same time."It was further held therein that, "the employer'sconduct should show that the three thingscontemplated under the proviso are parts of thesame transaction and the question whether theapplication was made as part of the sametransaction or at the same time when the actionwas taken would be a question of fact and will https://hcservices.ecourts.gov.in/hcservices/ depend upon the circumstances of each case."So far as the second judgment cited above is concerned, it isheld therein:"The application of the appellant can, in a sense, betreated as incidental proceeding; but it is a separateproceeding all the same and in that sense, it will begoverned by the provisions of Sec.33(2)(b) as anindependent proceeding. It is not interlocutoryproceeding properly so called in its full sense andsignificance; it is a proceeding between the employerand his employee who was no doubt concerned with themain industrial dispute along with other employee; butit is nevertheless a proceeding between two parties inrespect of a matter not covered by the said maindispute. It is therefore difficult to accept theargument that a proceeding which validly commences byway of an application made by the employer underSec.33(2)(b) should automatically come to an endbecause the main dispute has in the meanwhile beendecided. What is the order that should be passed insuch a proceedings is a question which cannot besatisfactorily answered unless it is held that theproceedings in question must proceed according to lawand dealt with as such.There is another aspect of this matter to whichreference must be made. Sec.33-A makes a specialprovision for adjudication as to whether any employerhas contravened the provisions of Sec.33. ThisSection has conferred on industrial employees a veryvaluable right of seeking the protection of theindustrial tribunal in case their rights have beenviolated contrary to the provisions of Sec.33.Sec.33-A provides that wherever any employee has agrievance that he has been dismissed by his employerin contravention of Sec.33(2), he may make a complaintto the specified authorities and such a complaintwould be tried as if it was an industrial disputereferred to the tribunal under Sec.10 of the Act. Inother words, the complaint is treated as anindependent industrial proceeding and an award has tobe pronounced on it by the tribunal concerned."6. In reply, the learned counsel appearing on behalf ofthe second respondent/management would submit that the orderpassed by this Court in W.P.No.5857 of 1989 thereby settingaside the order of the Labour court in Approval PetitionNo.1/1988 became final, as there was no appeal preferred by theother side. The learned counsel would cite a judgment reported https://hcservices.ecourts.gov.in/hcservices/ in 1978 II LLJ 1 (Punjab Beverages v. Suresh Chand) wherein itis held:"Section 33 enables a workman aggrieved by suchcontravention to make a complaint in writing in theprescribed manner to the Tribunal and it say that onreceipt of such complaint, the Tribunal shalladjudicate upon it as if it is a dispute referred toit in accordance with the provisions of the Act. Italso requires the Tribunal to submit its award to theappropriate Government and the provisions of the Actwould then apply to the said award. Section 33A thusgives to a workman aggrieved by an order of dischargeor dismissal passed against him in contravention ofS.33A thus gives to a workman aggrieved by an order ofdischarge or dismissal passed against him incontravention of S.33, the right to move the Tribunalfor redress of his grievance without having to takerecourse to S.10.""The appellant had contravened S.33(2)(b) indismissing the workman but such contravention did nothave the effect of rendering the order of dismissalvoid and inoperative and hence the workman is notentitled to maintain the application for determinationand payment under S.33C(2)."Yet another judgment would be cited by the learned counselreported in 2002-I-LLJ 834 (Jaipur Zila S.B.V. Bank Ltd., v.R.G. Sharma) wherein it is held:"Another Bench of three learned Judges in PunjabBeverages Pvt. Ltd., Chandigarh v. Suresh Chand andAnr. AIR 1978 SC 995 : 1978 (2) SCC 144 : 1978-II-LLJ-1 has expressed the contrary view that non-approval of the order of dismissal or failure tomake application under Section 33(2)(b) would notrender the order of dismissal inoperative; failureto apply for approval under Section 33(2)(b) wouldonly render the employer liable to punishment underSection 31 of the Act and the remedy of the employeeis either by way of a complaint under Section 33-Aor by way of a reference under Section 10(1)(d) ofthe Act.""The Supreme Court observed that the proviso toSection 33(2)(b) was mandatory. The view thatdischarge or dismissal of workman by employer incontravention of the mandatory proviso did notrender it inoperative or void, defeated the verypurpose of the said proviso and it became https://hcservices.ecourts.gov.in/hcservices/ meaningless.""If approval for discharge or dismissal was notgiven, nothing more was required to be done by theemployee (workman)".7. Bases on these judgments, the learned counsel wouldsubmit that the point for consideration is that on the date offiling of his writ petition, the legal position was 1978 II LLJ1 (supra). Merely because there was a contravention underSection 33(2)(b), the order of termination is not vitiated. Inthis case, the petitioner knew that the management filed apetition under Section 33(2)(b), but since the petition filedunder Section3 3(2)(a) was pending, the labour court dismissedthe 33(2)(b) petition.8. Learned counsel would cite a judgment of the Full Benchreported in AIR 1981 Jammu & Kashmir 21 (Abdul Salam v. State)wherein it is held:"A judgment inter partes of a competent court in aprevious writ petition would operate as res judicatain a subsequent suit between the same parties, wherethe issues directly involved in the two proceedingsare the same, irrespective of the fact whether ornot the decision in the earlier writ petition wasfounded on a view contrary to the one subsequentlyexpressed by the Supreme Court in a different case.The correctness or otherwise of the earlier decisionis wholly irrelevant whether the conditions for theapplication of the rule of res judicata aresatisfied in the latter case."Citing the above decision, the learned counsel would submit thatonce a matter is agitated and an order is passed, it is bindingon both parties. 9. The learned counsel would end up saying thatI.D.No.17/92 and Complaint No.4 of 1987 were taken up togetherand both were dismissed as they have no merit and would seek todismiss both the above writ petitions.10. In clarification, the learned counsel for thepetitioner would cite the judgment cited supra in 2002-I-LLJ834 and submit that in the same judgment, it is held that 'theorder of dismissal or discharge passed invoking Section 33(2)(b)dismissing or discharging an employee brings an end ofrelationship of the employer and employee from the date of hisdismissal or discharge but that order remains incomplete and https://hcservices.ecourts.gov.in/hcservices/ remains inchoate as it is subject to approval of the authorityunder the said provision.'11. The learned counsel would further submit that thelitigation is still on and the matter has not reached a finalityof decision. He would further submit they raised a legalquestion before the labour court, which was not answered.Admittedly, when there is a case pending relating to demotion,they did not file an application which according to the Supremecourt is bad, and would ask the employee to comply with themandatory provision under Section 33(a); that the dispute isrelated to demotion, whereas the complaint relates to dismissal.On such arguments, the learned counsel would seek to allow thewrit petitions as prayed for.12. In consideration of the facts pleaded, having regard tothe materials placed on record and upon hearing the learnedcounsel for both, it comes to be known that in the year 1983, onsome charges of misconduct, the Management has initiateddepartmental proceedings against the petitioner and havingconducted an enquiry, which is remarked as a 'farce' by thepetitioner, the second respondent Management has awarded apunishment of demotion to the cadre of Junior Cane Assistantfrom that of Senior Cane Assistant and aggrieved, the petitionerhas raised an Industrial Dispute in I.D.No.679 of 1984 beforethe Labour Court, which was transferred to the Labour Court,Vellore on its formation and re-numbered as I.D.No.17 of 1992.It further comes to be seen that during the pendency of the saidIndustrial Dispute, the second respondent Management has issuedanother charge memo. dated 31.12.1986 alleging certain othermisconducts and ultimately, dismissed the petitioner fromservice on 11.8.1987. In this backdrop, alleging that when anIndustrial Dispute is pending before the Labour Court regardingearlier punishment of demotion inflicted on him, the Managementis duty bound to get the approval for his dismissal from theLabour Court as required under Section 33(2)(b) of theIndustrial Disputes Act, the petitioner has filed the ComplaintNo.4 of 1987 before the Labour court. At this stage, theManagement has filed the Approval petition in Approval PetitionNo.1 of 1988 under Section 33(2)(b) of the Industrial DisputesAct seeking approval of the dismissal of the petitioner andsince the same was dismissed by the Labour Court on 29.3.1989,the Management has filed W.P.No.5857 of 1989 before this Courtand while allowing the said writ petition, a learned singleJudge of this Court has directed the Labour Court to conduct theenquiry in the Complaint No.4 of 1987 filed by the petitioner.13. Now, the grievance of the petitioner is that the LabourCourt, without affording him any opportunity to prove hisinnocence, has allowed the stand taken by the Management and https://hcservices.ecourts.gov.in/hcservices/ dismissed his complaint lodged in Complaint No.4 of 1987 as aconsequential one to the main Industrial Dispute, withoutconducting any separate enquiry in the same, which is mandatoryunder law.14. A careful perusal of the Award passed by the LabourCourt in I.D.No.17 of 1992 would show that just framing thepoint that 'whether the departmental enquiry has been conductedin the manner known to law', the Labour Court has proceeded todissect the case without having a mind to deal with the chargesframed against the workman. In such a serious case of dismissalfrom service, without conducting the enquiry in the manner knownto law observing the legalities such as framing the pointsregarding the charges and discussing them in the manner requiredand with due opportunity for both parties to be heard asrequired under law, the Labour court has simply concluded thatthe departmental enquiry has been conducted by the Managementwith sufficient opportunity for the workman.15. Even regarding the complaint filed by the petitioner inComplaint No.4 of 1987, the Labour Court has dismissed the sameon ground that since the main I.D. itself was dismissed, thecomplaint should also be dismissed. This is not the manner inwhich the Labour Court is expected to pass orders in the mattersfiled by the workman under Section 33(2)(b) alleging non-compliance of the provisions of Section 33 by the Managementwhile passing orders of dismissal of the workman. Section 33A(b) of the Industrial Disputes Act mandates that '... on receiptof such complaint, the Arbitrator, Labour Court, Tribunal orNational Tribunal, as the case may be, shall adjudicate upon thecomplaint as if it were a dispute referred to or pending beforeit, in accordance with the provisions of this Act and shallsubmit his or its Award to the appropriate Government and theprovisions of this Act apply accordingly'. 16. When such is the mandatory provision of law, withoutconducting any enquiry as required under law, the Labour Courthas proceeded to dismiss the said complaint filed by thepetitioner as a consequential one to the main I.D. Therefore,without going into the merits of the case, this Court is of theview that it is a matter that should be remitted back to theLabour Court for conducting fresh enquiry in both the matterswith due opportunity for both parties to be heard and disposethem of in the manner known to law and hence the followingorder:In result,(i) both the above writ petitions succeed and theyare allowed.(ii) The Award dated 13.9.1993 made in I.D.No.17 of https://hcservices.ecourts.gov.in/hcservices/ 1992 and the Order dated 13.9.1993 made in ComplaintNo.4 of 1987 by the Labour Court, Vellore arequashed.(iii) The subject is remitted to the Labour Court,Vellore for conducting fresh enquiry in both theI.D.No.17 of 1992 and the Complaint No.4 of 1987after framing necessary points, as mentioned supraand with due opportunity for both parties to be heardand pass orders on merits and in accordance with lawwithin six months from the date of receipt of a copyof this order.However, there shall be no order as to costs.Sd/Asst.Registrar/true copy/Sub Asst.Registrargs/RaoTo1.The Presiding Officer, Labour Court,Vellore.2.The Section Officer,VR Section, High Court, Madras.+2ccs to M/s.Row & Reddy, Advocates Sr 9319 and 9320SMK (CO)km/14.3. W.P.Nos. 18968 and 18969/1996.