Tamil Nadu State Transport Corporation(Madurai Division-II) Ltd. v. G.Ramakrishnan

IN THE HIGH COURT OF JUDICATURE AT MADRASDated 09..6..2008Coram:The Hon'ble Mr. Justice K.CHANDRUW.P. No. 17039 of 1998Tamil Nadu State Transport Corporation(Madurai Division-II) Ltd.Rep. by its Managing Director(Formerly known as Kattabomman Transport Corporation Ltd.)2 Trivandrum Road,Vannarpettai,Tirunelveli .. Petitionervs.1.G. Ramakrishnan2. Presiding OfficerIndustrial TribunalChennai .. RespondentsPetition filed under Article 226 of the Constitution of India seekingfor issuance of writ of Certiorari calling for the records of thesecond respondent relating to order dated 29.5.1998 passed in ApprovalPetition No. 4 of 1992 and quash the same. For Petitioner : Ms. Kala RameshFor Respondent 1 : Mr. V. Gangadaran for Mr. R. GanesanO R D E RHeard the arguments of the learned counsel for the parties andperused the records.2.This writ petition is directed against the order of thesecond respondent Industrial Tribunal dated 29.5.1998 made in ApprovalPetition No. 4 of 1992.3.The petitioner is the Management. Parties in this writpetition are referred to as the Management and workman as the case maybe.4.The brief facts leading to the industrial dispute are asfollows:The first respondent workman joined the service of the petitionerCorporation on 16.3.1971. He was charge-sheeted on 13.7.1991 forbeing unauthorisedly absent and without notice from 09.6.1991. Since https://hcservices.ecourts.gov.in/hcservices/ the explanation offered by the first respondent was not satisfactory,an enquiry was conducted on 27.7.1991. The Enquiry Officer, by hisreport dated 30.9.1991, found the charge against the first respondentas proved. A show-cause notice dated 26.10.1991 was issued as to whyhe should not be terminated from service. The workman gave a replydated 06.11.1991 and he was terminated from service by an order dated11.12.1991. Since a dispute relating to bonus was pending before thesecond respondent Tribunal in I.D. No. 62 of 1992, the petitionerCorporation filed an Approval Petition under Section 33(2)(b) of theIndustrial Disputes Act, 1947 [for short, 'I.D. Act'].5.The matter was taken on file by the second respondentIndustrial Tribunal as Approval Petition No. 4 of 1992. The workmanfiled 10 documents and they were marked as Exs. W.1 to W.10. TheManagement filed 10 documents and they were marked as Ex. M.1 to M.10.Both sides did not lead any oral evidence. The Industrial Tribunal,on an analysis of the evidence placed before it, passed the orderdated 29.5.1998, (which is impugned in this writ petition) and therequest for grant of approval to the dismissal of the first respondentworkman was rejected.6.Pending the writ petition, only notice was ordered in thepetition for injunction. Subsequently, it was dismissed by an orderdated 27.12.2002. The Tribunal did not go into the validity of theenquiry and the findings recorded by the Enquiry Officer. On thecontrary, it held that the workman had completed 20 years of serviceand, therefore, he is eligible to go under Voluntary Retirement as perthe Government Order. Since the workman was making continuousrepresentations to go on VR and that he had completed 20 years ofservice, he is eligible for VR. It also held that there was ajustification for his failure to attend duty and even though he hadsuffered 14 minor punishments, he was not a chronic absentee and thatif only he was given VR, he may get all his terminal benefits due tohis long service. 7.This approach of the Tribunal is wholly impermissibleespecially when the petitioner Corporation had passed a reasoned orderpreceded by an enquriy. The power under Section 33(2)(b) of the I.D.Act conferred on the Tribunal is limited in its scope. The SupremeCourt in Lalla Ram v. Management of D.C.M. Chemical Works Ltd.[(1978) 3 SCC 1] dealt with a case under Section 33(2)(b) of the I.D.Act and held in paragraph 12 as follows:Para 12:"The position that emerges from the abovequoteddecisions of this Court may be stated thus: Inproceedings under Section 33(2)(b) of the Act, thejurisdiction of the Industrial Tribunal is confined tothe enquiry as to (i) whether a proper domestic enquiryin accordance with the relevant rules/Standing Ordersand principles of natural justice has been held; (ii)whether a prima facie case for dismissal based on legalevidence adduced before the domestic tribunal is madeout; (iii) whether the employer had come to a bona fide https://hcservices.ecourts.gov.in/hcservices/ conclusion that the employee was guilty and thedismissal did not amount to unfair labour practice andwas not intended to victimise the employee regard beinghad to the position settled by the decisions of thisCourt in Bengal Bhatdee Coal Co. v. Ram Prabesh Singh,Titaghur Paper Mills Co. Ltd. v. Ram Naresh Kumar, HindConstruction & Engineering Co. Ltd. v. Their Workmen,Workmen of Messrs Firestone Tyre & Rubber Company ofIndia (P) Ltd. v. Management and Eastern Electric &Trading Co. v. Baldev Lal that though generallyspeaking the award of punishment for misconduct underthe Standing Orders is a matter for the management todecide and the Tribunal is not required to consider thepropriety or adequacy of the punishment or whether itis excessive or too severe yet an inference of malafides may in certain cases be drawn from the impositionof unduly harsh, severe, unconscionable or shockinglydisproportionate punishment; (iv) whether the employerhas paid or offered to pay wages for one month to theemployee and (v) whether the employer hassimultaneously or within such reasonably short time asto form part of the same transaction applied to theauthority before which the main industrial dispute ispending for approval of the action taken by him. Ifthese conditions are satisfied, the Industrial Tribunalwould grant the approval which would relate back to thedate from which the employer had ordered the dismissal.If however, the domestic enquiry suffers from anydefect or infirmity, the labour authority will have tofind out on its own assessment of the evidence adducedbefore it whether there was justification for dismissaland if it so finds it will grant approval of the orderof dismissal which would also relate back to the datewhen the order was passed provided the employer hadpaid or offered to pay wages for one month to theemployee and the employer had within the time indicatedabove applied to the authority before which the mainindustrial dispute is pending for approval of theaction taken by him."8.Further, the same principle was reiterated by the SupremeCourt vide its judgment in Cholan Roadways Ltd. v. G.Thirugnanasambandam [(2005) 3 SCC 241]. The following passage foundin paragraph 13 may be usefully extracted:Para 13:"It is neither in doubt nor in dispute that thejurisdiction of the Industrial Tribunal under Section33(2)(b) of the Industrial Disputes Act is a limitedone. The jurisdiction of the Industrial Tribunal underSection 33(2)(b) cannot be equated with that of Section10 of the Industrial Disputes Act. In this caseadmittedly an enquiry has been held wherein the partiesexamined their witnesses...." https://hcservices.ecourts.gov.in/hcservices/

9.Therefore, the Tribunal had exceeded its jurisdiction inrefusing to grant approval on an irrelevant ground. The Tribunal didnot keep in its mind the parameters of Section 33(2)(b) of the I.D.Act while dealing with the application presented before it by thepetitioner Corporation. 10.In view of the same, the writ petition is allowed and theimpugned order of the Tribunal will stand set aside. No costs.However, the grant of approval for the termination of the firstrespondent workman will not prevent him from raising an appropriateindustrial dispute against his termination.Sd/Asst.Registrar/true copy/Sub Asst.RegistrargriToPresiding OfficerIndustrial TribunalChennai1 CC To Mrs.Kala Ramesh, Advocate, SR NO.27861Delivery Order in W.P. No. 17039 of 1998 TEJ(CO)rvr 13/06/08