The Honourable Mr v. The Presiding Officer

In the High Court of Judicature at MadrasDated: 22.8.2007 Coram:The Honourable Mr.Justice F.M.Ibrahim KalifullaandThe Honourable Mrs.Justice R.BanumathiW.A.Nos.689 and 690 of 2007Ananda Kathirone .. Appellant in both the Writ Appealsvs.1. The Presiding Officer, Principal Labour Court, Chennai-104.2. The Management of Addison and Company Limited, No.803, Anna Salai, Chennai-2. .. Respondents in both the Writ AppealsWrit Appeal No.689 of 2007 filed under Clause 15 of the Letters Patentagainst the order of this Court, dated 10.1.2007 in W.P.No.8616 of 2004.W.P.No.8616 of 2004 Writ of certiorarified Mandamus calling for therecords of the award dated 15.12.2003 passed in ID.No.62/98 on the file ofthe first respondent viz. The Principal Labour Court, Chennai and quashthe unallowed portion and modify the award to the effect that thepetitioner is entitled to get he full back wages and other attendantbenefits from the date of suspension i.e. 20.5.95 with interest at therate of 12% p.a. and also entitled for retirement benefits with allattendant benefits along with 12% interest per annum and thepetitioner/Workmen is also entitled to damages/Compensation of areasonable amount, that may be fixed by this Court and direct the secondrespondent Management to pay all the above said amount.Writ Appeal No.690 of 2007 filed under Clause 15 of the Letters Patentagainst the order of this Court, dated 10.1.2007 in W.P.No.17550 of 2004.W.P.No.17550 of 2004 Writ of Certiorari to call for the records on thefile of the first respondent, Principal Labour Court, chennai and to quashthe impugned award dated 15.12.2003 made in I.D.62/98. https://hcservices.ecourts.gov.in/hcservices/ For appellant : Mr.N.G.R.Prasad for M/s.Row & ReddyFor respondent-2: Mr.M.Vijayan for M/s.King & PatridgeJudgment(The Judgment of the Court was delivered by F.M.Ibrahim Kalifulla,J)These Writ Appeals arise out of the common order of the learned singleJudge dated 10.1.2007 passed in W.P.No.8616 of 2004 (in W.A.No.689 of2007) and W.P.No.17550 of 2004 (in W.A.No.690 of 2007).2. The appellant is a workman under the second respondent-Managementand the issue relates to his non-employment at the instance of the secondrespondent-Management.3. The brief facts which are required to be stated are that theappellant-workman was employed as Inspector Grade-II in the secondrespondent-Management, that he was stated to have put in 35 years ofunblemished service, that he was issued with a charge memo dated 20.5.1995alleging that he instigated the other workmen of the second respondent-Management not to carry out the lawful orders of the second respondent-Management to work on 1.4.1995, 3.4.1995, 4.4.1995, 9.4.1995, 16.4.1995and 23.4.1995 by issuing hand-bills (pamphlets) and such instigation ofthe appellant-workman amounted to disobedience of the orders of the secondrespondent-Management and he also instigated the other workmen to strikework on those days, and the said conduct amounted to misconduct fallingunder Clause 23(a), (c) and (j) of the Certified Standing Orders of thesecond respondent-Management. An enquiry was ordered to be held andultimately, an order of dismissal came to be passed against the appellant-workman on 2.2.1996. In the said order of dismissal, it was specificallymentioned that in accordance with the provisions of Section 33(2)(b) ofthe Industrial Disputes Act (hereinafter referred to as 'the I.D. Act'),having regard to the pendency of conciliation proceedings before the JointCommissioner of Labour (for short, JCL), the appellant-workman was offeredone month's salary in lieu of notice and the "approval application" underSection 33(2)(b) of the I.D. Act was also simultaneously filed before theJCL. The said approval application preferred by the second respondent-Management was rejected by the JCL by order dated 25.11.1996 holding thatprior permission under Section 33(1)(b) of the I.D. Act ought to have beenobtained and that the approval application under Section 33(2)(b) was notmaintainable. Challenging the same, the second respondent-Managementpreferred W.P.No.19257 of 1996 before this Court and when the same waspending, the second respondent-Management preferred an application seekingpermission of this Court to withdraw the very approval application filedunder Section 33(2)(b) of the I.D. Act. Considering the said applicationof the second respondent-Management and the Writ Petition itself, an ordercame to be passed in that Writ Petition on 17.3.1997 permitting the secondrespondent-Management to withdraw the very approval application filedunder Section 33(2)(b) of the I.D. Act, while leaving the legal infirmity https://hcservices.ecourts.gov.in/hcservices/ raised in the said application as regard the order of dismissal, to beworked out in an appropriate industrial dispute to be raised under Section2-A(2) of the I.D. Act (as amended by State Act). The appellant-workmanchallenged the said order of the learned single Judge in W.P.No.19257 of1996 by filing Writ Appeal in W.A.No.474 of 1997. A Division Bench ofthis Court disposed of the Writ Appeal by judgment dated 17.12.197,directing the State Government to "refer" the issue of non-employment ofthe appellant-workman for adjudication before the Principal Labour Court,Chennai. The Division Bench also fixed the time limit of six months fromthe date of reference for the disposal of the dispute. That is how thepresent dispute in I.D.No.62 of 1998 came up for adjudication before thefirst respondent-Labour Court.4. In the said dispute in I.D.No.62 of 1998, the appellant-workmanfiled a claim statement contending that the dismissal of the appellant-workman by the second respondent-Management was in violation of theprovisions of Section 33 of the I.D. Act and that in any event, themisconduct alleged against the appellant was not proved with materialevidence. It was also claimed that since the appellant-workman was a"protected workman", the violation under Section 33 of the I.D. Act wouldstrike at the very root of the order of dismissal itself. 5. The claim was resisted by the second respondent-Managementcontending that the appellant-workman was dismissed for the act ofmisconduct proved in an enquiry held for that purpose and that the claimthat the appellant-workman was a "protected workman" was not true. 6. Before the first respondent-Labour Court, no oral evidence was letin on the side of the second respondent-Management and the appellant-workman examined himself as W.W.1 and marked Exs.W.1 to W.8. Exs.M.1 toM.19 were marked on the side of the second respondent-Management.7. The first respondent-Labour Court, while considering the issue ofnon-employment, focussed its attention on the question of merits of themisconduct alleged to have been proved by the second respondent-Managementas well as the legal infirmity based on Section 33(1)(b) of the I.D. Act.As far as the merits of the misconduct are concerned, the firstrespondent-Labour Court reached a conclusion that the misconduct was notsatisfactorily proved. On the question of violation of Section 33 of theI.D. Act also, the first respondent-Labour Court reached a conclusion thatthe appellant-workman being a "protected workman", the dismissal was notin accordance with law. Since the appellant-workman had already reachedthe age of superannuation, the first respondent-Labour Court while passingits Award on 15.12.2003, held that the appellant-workman was entitled toback wages only and that there was no scope for granting the relief ofreinstatement. Ultimately, the first respondent-Labour Court, in the Awardimpugned before the learned single Judge, dated 15.12.2003, declared thatthe appellant-workman was entitled to back wages and other attendantbenefits from the date of dismissal till the date of retirement. https://hcservices.ecourts.gov.in/hcservices/

8. It is as against the said Award of the first respondent-LabourCourt, dated 15.12.2003 in I.D.No.62 of 1998, the Writ Petitions came tobe filed both by the workman and the Management and by the impugned commonorder passed in the Writ Petitions, the learned single Judge took the viewthat the findings of the first respondent-Labour Court as regards themerits of the misconduct were perverse and that it ought not to have re-appraised the evidence let in the domestic enquiry. In the conclusion ofthe learned single Judge, the findings of the first respondent-LabourCourt as regards the merits of the misconduct were wholly illegal andtherefore, the same called for interference. As far as the violation ofSection 33 of the I.D. Act is concerned, the learned single Judge took theview that when the dispute has been referred to under Section 10 of theI.D. Act, the first respondent-Labour Court ought not to have examined anyviolation of Section 33 of the I.D. Act in such a dispute.9. Assailing the common order of the learned single Judge, learnedcounsel appearing for the appellant-workman contended that both thereasonings of the learned single Judge for interfering with the impugnedAward of the first respondent-Labour Court were not justified. Accordingto the learned counsel, having regard to Section 11-A of the I.D. Act, thefirst respondent-Labour Court was fully empowered to examine as to whetherthe claim of the second respondent-Management that the dismissal of theappellant-workman for the act of misconduct proved in an enquiry held forthat purpose, was wide open for consideration and therefore, the firstrespondent-Labour Court was justified in re-appreciating the wholeevidence in order to find out whether the stand of the second respondent-Management on the merits of the misconduct was correct or not. As far asthe violation of Section 33 of the I.D. Act is concerned, the learnedcounsel for the appellant-workman relied upon the Constitution Benchdecision of the Supreme Court reported in 2002 (2) SCC 244 (Jaipur ZilaSahakari Bhoomi Vikas Bank Ltd. vs. Ram Gopal Sharma) and in particular,paragraph 15 of the decision and contended that in the light of the saiddecision of the Supreme Court, in the event of violation of Section 33 ofthe I.D. Act demonstrated before the first respondent-Labour Court, theLabour Court was fully justified in granting the relief as has been donein the impugned Award and the learned single Judge ought not to haveinterfered with the same.10. As against the above submissions, learned counsel appearing forthe second respondent-Management contended that in the case on hand, therewas no violation of Section 33 of the I.D. Act, inasmuch as, as on thedate of dismissal, namely 2.2.1996, no conciliation proceeding was pendingbefore the JCL and therefore, the failure to either seek for an approvalunder Section 33(2)(b) of the I.D. Act or prior permission under Section33(1)(b) of the I.D. Act, was not required. The learned counsel appearingfor the second respondent-Management by referring to the earlier order ofthe learned single Judge in W.P.No.19257 of 1996, dated 17.3.1997,contended that realising the fact that no conciliation proceeding was https://hcservices.ecourts.gov.in/hcservices/ pending as on 2.2.1996, inasmuch as the conciliation proceeding, as amatter of fact, commenced only on 17.9.1996, the second respondent-Management sought the permission of this Court to withdraw the veryapproval application filed under Section 33(2)(b) of the I.D. Act, whichwas filed by mistake and therefore, the alleged violation of Section 33 ofthe I.D. Act cannot be a ground for interfering with the order ofdismissal passed against the appellant-workman. As far as the merits ofthe misconduct are concerned, learned counsel for the second respondent-Management contended that the findings of the first respondent-LabourCourt on the merits of the misconduct were wholly perverse and therefore,there was every justification in the order of the learned single Judge inhaving interfered with the said Award of the first respondent-LabourCourt. 11. Having considered the respective submissions of the learnedcounsel as well as the material papers placed before us, as regards thecontention based on Section 33 of the I.D. Act is concerned, at theoutset, we wish to state that in the light of the Constitution Benchdecision of the Supreme Court reported in 2002 (2) SCC 244 (Jaipur ZilaSahakari Bhoomi Vikas Bank Ltd. vs. Ram Gopal Sharma), it will have to beheld that the violation of Section 33 of the I.D. Act either falling underSection 33(2)(b) or under Section 33(1)(b) would ipso-facto render theorder of dismissal void and inoperative. In fact, the question dealt withby the Supreme Court in that case was that, "If the approval is notgranted under Section 33(2)(b) of the Industrial Disputes Act, 1947,whether the order of dismissal becomes ineffective from the date it waspassed or from the date of non-approval of the order of dismissal andwhether failure to make application under Section 33(2)(b) would notrender the order of dismissal inoperative?" While dealing with the saidquestion, the Supreme Court referred to its earlier Constitution Benchdecision reported in the case of AIR 1963 SC 1756 = 1964 (2) SCR 104(P.H.Kalyani vs. Air France, Calcutta) as well as one other decision ofthe Supreme Court reported in AIR 1966 SC 380 = 1965 (3) SCR 411 (TataIron and Steel Co. Ltd. vs. S.N.Modak) and the Constitution Bench of theSupreme Court ultimately held as under in paragraph 15 in 2002 (2) SCC 244(cited supra):"15. The view that when no application is made orthe one made is withdrawn, there is no order ofrefusal of such application on merit and as such theorder of dismissal or discharge does not become voidor inoperative unless such an order is set asideunder Section 33-A, cannot be accepted. In our view,not making an application under Section 33(2)(b)seeking approval or withdrawing an application oncemade before any order is made thereon, is a clearcase of contravention of the proviso to Section 33(2)(b). An employer who does not make an applicationunder Section 33(2)(b) or withdraws the one made,cannot be rewarded by relieving him of the statutory https://hcservices.ecourts.gov.in/hcservices/ obligation created on him to make such anapplication. If it is so done, he will be happier ormore comfortable than an employer who obeys thecommand of law and makes an application invitingscrutiny of the authority in the matter of grantingapproval of the action taken by him. Adherence to andobedience of law should be obvious and necessary in asystem governed by rule of law. An employer by designcan avoid to make an application after dismissing ordischarging an employee or file it and withdrawbefore any order is passed on it, on its merits, totake a position that such order is not inoperative orvoid till it is set aside under Section 33-Anotwithstanding the contravention of Section 33(2)(b)proviso, driving the employee to have recourse to oneor more proceedings by making a complaint underSection 33-A or to raise another industrial disputeor to make a complaint under Section 31(1). Such anapproach destroys the protection specifically andexpressly given to an employee under the said provisoas against possible victimization, unfair labourpractice or harassment because of pendency ofindustrial dispute so that an employee can be savedfrom hardship of unemployment."12. In fact, in AIR 1966 SC 380 = 1965 (3) SCR 411 (Tata Iron andSteel Co. Ltd. vs. S.N.Modak), the Supreme Court has held as under inparagraph 11:"11. .... order of dismissal or discharge beingincomplete and incohate until the approval is obtained,cannot effectively terminate the relationship of theemployer and employee and that if the approval is notaccorded by the Tribunal, the employer would be boundto treat the respondent as its employee and paying hisfull wages for the period even though the employer maysubsequently proceeded to terminate the services of therespondent. ..."13. In the light of the above said legal proposition as stated withregard to the violation of Section 33(2)(b) of the I.D. Act and havingregard to the implications of Section 33(1)(b) of the I.D. Act, we are ofthe considered opinion that whatever that has been stated in relation toviolation of Section 33(2)(b) of the I.D. Act would ipso-facto beapplicable in respect of the provisions contained in Section 33(1)(b) ofthe I.D. Act. https://hcservices.ecourts.gov.in/hcservices/

14. When we consider the case on hand in the above said legal positionas regards violation of Section 33 of the I.D. Act, according to theappellant-workman, since even as per the order of dismissal, the secondrespondent-Management claimed that the conciliation proceedings werepending before the JCL as on the date of dismissal, namely 2.2.1996, itsfailure to comply with the said statutory obligation, would render theorder of dismissal void and inoperative. As far as the said contention isconcerned, on behalf of the second respondent-Management, it was contendedthat as on the date of dismissal, namely 2.2.1996, there was noconciliation proceeding pending. In support of the said stand, solereliance was placed upon the order of the learned single Judge dated17.3.1997 passed in W.P.No.19257 of 1996, wherein the learned singleJudge, while considering the second respondent-Management's applicationseeking permission to withdraw the very approval application itself filedunder Section 33(2)(b) of the I.D. Act, stated in paragraph 6 to theeffect that, " ... It is further seen that the conciliation proceedingson the petitioner management under Section 33 would commence only on17.9.1996 whereas the petitioner management dismissed the secondrespondent from services of the petitioner Company on 2.2.1996. On thedate of dismissal there was no conciliation proceedings pending and thepetitioner management filed approval petition before the first respondentby way of abundant caution. ....". Though the learned single Judge inW.P.No.19257 of 1996, stated so in the said order, ultimately, whilepermitting the second respondent-Management to withdraw the very approvalapplication filed under Section 33(2)(b) of the I.D. Act, the learnedsingle Judge made it clear that the very contention of the appellant-workman as regards the legal infirmity, namely the violation of Section 33of the I.D. Act, can be agitated by the appellant-workman in thedispute which could be raised under Section 2-A(2) of the I.D. Act.While reserving the said liberty to the appellant-workman, the learnedsingle Judge has stated the same in the following words in paragraph 7 inW.P.No.19257 of 1996: "7. ... As a matter of fact the allegeddefect in the order of dismissal of the secondrespondent by the petitioner can be made use of by thesecond respondent in the proceedings to be initiated inaccordance with law. As a matter of fact the learnedcounsel for the petitioner has submitted that it isalways open to the second respondent to challenge theorder of dismissal in accordance with the provisions ofthe Act more particularly Section 2-A(2) and it is opento the second respondent to make use of the allegedinfirmity in the order of dismissal".15. In the light of the said liberty made available to the appellant-workman while permitting the second respondent-Management to withdraw theapproval application filed under Section 33(2)(b) of the I.D. Act, we areof the considered opinion that it was incumbent upon the second https://hcservices.ecourts.gov.in/hcservices/ respondent-Management to have demonstrated before the first respondent-Labour Court that there was no necessity for compliance of Section 33 ofthe I.D. Act when the order of dismissal was passed as against theappellant-workman on 2.2.1996 itself.16. On a perusal of the Award impugned in the Writ proceedings, wefind that though the second respondent-Management claimed in the affidavitfiled in support of Writ Petition No.17550 of 2004 challenging theimpugned Award that the notice for conciliation was issued only on9.9.1996 calling for a meeting on 17.9.1996, none of the notices whichemanated from the office of the JCL was placed before the firstrespondent-Labour Court. Though the learned counsel for the secondrespondent-Management would contend that having regard to the fact thatthe appellant-workman raised the plea of violation of Section 33 of theI.D. Act, the burden was upon him to have proved the same to thesatisfaction of the first respondent-Labour Court with particularreference to the issuance of the notices by the Conciliation Officer, weare of the considered opinion that the appellant-workman having raised theplea before the first respondent-Labour Court that there was a violationof the provisions of Section 33 of the I.D. Act with a pointed referenceto the violation under Section 33(2)(b) of the I.D. Act, and when thesecond respondent-Management took the stand that as on the date ofdismissal, namely 2.2.1996, there was no conciliation proceeding pending,the burden was only on the second respondent-Management to haveestablished the said fact. In fact, on a perusal of the counter statementfiled before the first respondent-Labour Court in the dispute in I.D.No.62of 1998, the second respondent-Management has not even refuted theallegation of violation of Section 33 of the I.D. Act as raised by theappellant-workman in the claim statement. In this context, it will berelevant to note that in the very order of dismissal passed against theappellant-workman, dated 2.2.1996, the second respondent-Management statedin so many words that in the light of the pending conciliation proceedingsbefore the JCL, one month's notice pay was being paid in compliance ofSection 33(2)(b) of the I.D. Act which itself, was sufficient to supportthe stand of the appellant-workman that the compliance of Section 33 ofthe I.D. Act became imperative as on the date of dismissal. If the saidclaim of the appellant-workman were to be dislodged, the secondrespondent-Management ought to have placed all the necessary materials toprove the contrary. To our dismay, the second respondent-Management hasmiserably failed to discharge the said burden before the first respondent-Labour Court. Therefore, we are convinced that the violation of Section 33of the I.D. Act as alleged by the appellant-workman before the firstrespondent-Labour Court, was fully established and consequently, theultimate conclusion of the first respondent-Labour Court on that scorecannot be found fault with. The reasoning of the learned single Judge thatin a dispute raised under Section 10 of the I.D. Act, the violation ofSection 33 of the I.D. Act cannot be gone into, is not legally sustainableand therefore, the said reasoning of the learned single Judge cannot alsobe accepted. https://hcservices.ecourts.gov.in/hcservices/

17. As far as the merits of the misconduct are concerned, when weperuse the impugned Award of the first respondent-Labour Court, we findthat the Labour Court took the view that the witnesses examined in supportof the charges were all interested witnesses, that only in the domesticenquiry, the Management witnesses deposed about the pamphlets issued bythe appellant-workman inside the factory premises and the Labour Courttook an exception to the contents of the notices issued by the secondrespondent-Management under Ex.M-16 series that the actual place in whichthe pamphlets were distributed was not specifically mentioned, though theManagement witnesses specifically referred to the actual place ofdistribution of the pamphlets by the appellant-workman. We are afraid thaton that score, there was any justification for the first respondent-LabourCourt to have inferred that the misconduct alleged against the appellant-workman was not made out, in the absence of any other motive for thewitnesses to have deposed against the appellant-workman. In fact, thediscussion by the first respondent-Labour Court on the merits of themisconduct was very slender and in an abrupt manner, the first respondent-Labour Court has reached the conclusion that the evidence let in on theside of the Management was not sufficient to prove the act of misconduct.Therefore, we are not convinced as regards the said conclusion of theLabour Court in holding that the misconduct levelled against theappellant-workman was not proved.18. However, since the violation of Section 33 of the I.D. Act struckat the very root of the order of dismissal itself, with which conclusionof the first respondent-Labour Court, we fully concur, we hold that theAward of the first respondent-Labour Court ought not to have beeninterfered with by the learned single Judge on that score.19. After reaching the above said conclusion, when we come to thequestion of the relief part of the Award of the first respondent-LabourCourt, we wish to be guided by the decision of the Supreme Court reportedin 2005 (5) SCC 124 (Allahabad Jal Sansthan vs. Daya Shankar Rai), whereinthe Supreme Court stated the legal position as under in paragraphs 6 and16: "6. A law in absolute terms cannot be laid downas to in which cases, and under what circumstances,full back wages can be granted or denied. The LabourCourt and/or Industrial Tribunal before whichindustrial dispute has been raised, would be entitledto grant the relief having regard to the facts andcircumstances of each case. For the said purpose,several factors are required to be taken intoconsideration. It is not in dispute that Respondent 1herein was appointed on an ad hoc basis; his serviceswere terminated on the ground of a policy decision, asfar back as on 24-1-1987. Respondent 1 had filed awritten statement wherein he had not raised any plea https://hcservices.ecourts.gov.in/hcservices/ that he had been sitting idle or had not obtained anyother employment in the interregnum. The learnedcounsel for the appellant, in our opinion, is correctin submitting that a pleading to that effect in thewritten statement by the workman was necessary. Notonly no such pleading was raised, even in his evidence,the workman did not say that he continued to remainunemployed. In the instant case, the respondent hereinhad been reinstated from 27-2-2001.""16. We have referred to certain decisions of thisCourt to highlight that earlier in the event of anorder of dismissal being set aside, reinstatement withfull back wages was the usual result. But now with thepassage of time, it has come to be realised thatindustry is being compelled to pay the workman for aperiod during which he apparently contributed little ornothing at all, for a period that was spentunproductively, while the workman is being compelled togo back to a situation which prevailed many years agowhen he was dismissed. It is necessary for us todevelop a pragmatic approach to problems doggingindustrial relations. However, no just solution can beoffered but the golden mean may be arrived at."20. In the case on hand, after the order of dismissal dated 2.2.1996,there is nothing to suggest that the appellant-workman remained unemployedthroughout till he reached the age of superannuation on 15.5.2000. As faras the act of misconduct is concerned, we had our own reservations asregards the findings of the first respondent-Labour Court. The misconductrelated to instigation of the other workmen not to carry on the lawfulorders of the Management in reporting for work on certain specified datesand considering the said act of misconduct alleged against the appellant-workman, we are of the considered opinion that the interest of justicewould be subserved by modifying the Award of the first respondent-LabourCourt by reducing the back wages alone to an extent of 75%, apart fromdirecting the second respondent-Management to pay the other attendantbenefits, namely Gratuity and Provident Fund.21. Therefore, having regard to our conclusions in these Writ Appeals,modifying the Award of the first respondent-Labour Court to the one of 75%back wages + Gratuity + Provident Fund, we permit the appellant-workman towithdraw the balance amount if any, is remaining in the Court deposit tothe credit of I.D.No.62 of 1998 and if anything more by way of 75% of backwages is payable by the second respondent-Management to the appellant-workman over and above the amount lying in deposit, the second respondent-Management is directed to calculate the same and pay the balance amount tothe appellant-workman within eight weeks from the date of receipt of acopy of this judgment, along with the Gratuity and the Provident Fundpayable to the appellant-workman. https://hcservices.ecourts.gov.in/hcservices/

22. The Writ Appeals are disposed of on the above terms. No costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.csCopy toThe Presiding Officer,Principal Labour Court,Chennai-104.+ 1 CC To M/s.Row and Reddy, Advocate SR NO.52444+ 1 CC To M/s.King and Patridge, Advocate SR NO.52473W.A.Nos.689 and 690 of 2007 jsk[co]gp/6.9.