Madrasdated High Court · 2008

enquiry before passing the order of discharge dated 08.09.2004;that the petitioner also did not ask for any opportunity to let inany evidence to support the order of discharge and therefore thepetitioner having failed to prove the medical unfitness of thesecond respondent, the order of termination was invalid. Soholding, the first respondent Labour Court directed reinstatementof the second respondent with all backwages, continuity of serviceand all other attendant benefits. 7. Assailing the same, Mr.A.L.Somaiyaji, learned seniorcounsel appearing for the petitioner contended that the complaintpreferred by the second respondent under Section 33 A of theIndustrial Disputes Act itself was not maintainable in the factsand circumstances of the case; that assuming the complaint wasmaintainable, since the conciliation failure report was receivedby the petitioner and the second respondent on 02.09.2004, whilethe order of discharge came to be passed only on 08.09.2004, therewas no violation of Section 33 as alleged by the secondrespondent; that the Labour Court having disallowed the petitionerto cross examine the second respondent on merits, who was examinedas WW1, it was not justified in holding that the petitioner failedto establish the merits of the allegations based on which theorder of discharge dated 08.09.2004, came to be passed.8. The learned Senior Counsel further contended that thefirst respondent Labour Court failed to consider the opinion ofthe company's Medical Officers, based on whose certificate, theorder of discharge came to be passed. According to the learnedSenior Counsel, the first respondent Labour Court in its orderdated 08.03.2007, passed in I.A.Nos.15 to 19 of 2007 in complaintNo.1/2007 having held that in the interest of justice,petitioner's additional counter should be received and should beallowed to adduce evidence prevented the petitioner to crossexamine the second respondent on merits and thereby committedserious irregularity while passing the impugned award. The learnedsenior counsel relied upon the decisions reported in 2006 (5) SCC752, 2006 (9) SCC 643, 2005 (4) APLT 541, AIR 1972 Bom 152, Vol33 Bom LR 396, 1980 (1) MLJ 395 and 1984 (3) Bombay Case Reporter36 in support of his submissions.9. As against the above submissions, the second respondentwho appeared as Party-in-Person contended that since the order ofdischarge dated 08.10.2004, was passed in violation of Section 33(2)(b) of the Industrial Disputes Act, the said order being anullity, the first respondent Labour Court was justified indeclining the request of the petitioner to delve into the meritsof the order of dismissal. He also contended that since themaintainability of Section 33 A complaint was dealt with by thisCourt in the earlier writ petition and the writ appeal, it is no https://hcservices.ecourts.gov.in/hcservices/ longer open to the petitioner to canvass the very same grounds inthis writ petition. The second respondent however, curiouslycontended that the first respondent Labour Court failed toconsider various relevant aspects and therefore it requiresremittal. He further contend that the allegation of medicalunfitness was not established by the petitioner before the firstrespondent. According to him the medical unfitness as declared bythe Company's Medical Officer cannot be accepted as he was notcompetent to issue such a certificate. He relied upon thefollowing decisions in support of his submissions viz., AIR 2001SC 2090, AIR 1955 SC 258, AIR 1966 SC 380, AIR 2002 SC 643, AIR1960 SC 160, 2007 (2) LLN 226, AIR 1999 SC 2423, AIR 1953 SC 88,AIR 1998 SC 1681, AIR 1978 SC 311 and AIR 1962 SC 1363.10. After hearing the learned senior counsel appearing forthe petitioner and the second respondent in person, I find thefollowing questions require to be dealt with in this writpetition, viz.,(a) Whether there was any violation of Section 33of the Industrial Disputes Act in order to maintain acomplaint under Section 33 A of the Industrial DisputesAct ?(b)Whether the complaint under Section 33 A ofthe Industrial Disputes Act as preferred by the secondrespondent was maintainable before the first respondentLabour Court ?(c) Even if it were to be held that Section 33 Acomplaint as preferred is not maintainable, whether thefirst respondent Labour Court had jurisdiction to dealwith the claim of the second respondent in theproceedings which culminated in the impugned Award ?(d)Whether the impugned Award is sustainable inlaw and what is the relief to be granted to the parties?11. To consider the first question viz., Whether there wasany violation of Section 33 of the Industrial Disputes Act inorder to maintain a complaint under Section 33 A of the IndustrialDisputes Act, the provisions of the Industrial Disputes Act arerequired to be referred. Prior to the passing of the order oftermination dated 08.09.2004, the second respondent approached theConciliation Officer viz., the Assistant Commissioner(Conciliation-II) Kurulagam, by filing an application on27.04.2004. In the said application, the second respondentalleged non-employment on and after 21.02.2004. The said https://hcservices.ecourts.gov.in/hcservices/ application was filed under Section 2 A of the Industrial DisputesAct. The petitioner filed their counter in the said dispute on21.07.2004, contending that there was no termination as alleged bythe second respondent and that he continue to remain in theirservice and therefore the dispute as raised under Section 2 A wasnot maintainable. The Conciliation Officer sent his failurereport dated 24.08.2004, to the second respondent and markedcopies of the report to the Secretary, Labour and EmploymentDepartment, Madras-9, Commissioner of Labour, Joint Commissionerof Labour, Deputy Commissioner of Labour as well as thepetitioner. The said report was stated to have been received bythe petitioner and the second respondent on 02.09.2004.12. It is in the above said background, the second respondentpreferred the present complaint under Section 33 A before thefirst respondent Labour Court alleging that there was violation ofSection 33 of the Industrial Disputes Act and the petitionershould be directed to reinstate him with all backwages andcontinuity of service. According to the second respondent, eventhough the conciliation failure report dated 24.08.2004, wasreceived by both the parties on 02.09.2004, unless the said reporthad actually been received by the Government, the dispute wasdeemed to have been pending on the file of the ConciliationOfficer and therefore the dismissal order passed on 08.09.2004,prior to the date of such receipt of the Report by the Governmentwas in violation of the provisions of the Industrial Disputes Act.13. To test the correctness of the above stand of the secondrespondent, a reference to Section 2A, 12, 20, 22, 33 and 33Ahave to be made. Section 2A(2) has been inserted by way ofamendment by the State of Tamil Nadu by Tami Nadu Act 5 of 1988.While under Section 2A of the Act, even the individual disputerelating to non-employment of the workman should be deemed to bean industrial dispute notwithstanding that no other workman norany union of workmen is a party to the dispute, by inserting sub-section (2) by way of State Government amendment, provision hasbeen made to enable the individual workman to approach the LabourCourt for adjudication of the issue of non-employment, if nosettlement is arrived at in the course of conciliationproceedings. In order to workout such an easy remedy madeavailable to the individual workman under Section 2A(2),consequential rules have also been introduced in Rules 25A and 25Bin the Tamil Nadu Industrial Disputes Rules, hereinafter referredto as the Rules. 14. Rule 25A prescribes that the Conciliation Officer shouldsend a report under sub-section 4 of Section 12 of the Act to theSecretary to Government of Tamil Nadu, Labour Department, Fort St.George, Madras, through the Commissioner of Labour, Madras. Under https://hcservices.ecourts.gov.in/hcservices/ Rule 25B it is provided that on failure of conciliation in adispute raised under Section 2(A)(1), the Conciliation Officershould send an intimation to the aggrieved workman with a copymarked to the employer as well as the Commissioner and Secretaryto Government, Labour and Employment Department, Madras-9 andCommissioner of Labour, Madras-6 and on receipt of suchintimation, the aggrieved workman can apply in Form C-1 to theLabour Court having jurisdiction over the area for adjudication ofsuch dispute. While such dispute should be filed in duplicate,along with the dispute a copy of the intimation received from theConciliation Officer should also be filed.15. Section 12 of the Act prescribes the duties of theConciliation Officers. Under sub-section 4 of Section 12 if nosettlement is arrived at in an industrial dispute raised beforehim, the Conciliation Officer should send a full report to theappropriate Government setting forth the steps taken by him forresolving the dispute and the reasons on account of which, in hisopinion, a settlement could not be arrived at. As we are notconcerned with the Industrial Dispute as defined under Section 2(k) and we are presently concerned with an individual dispute,which by virtue of Section 2A of the Act is deemed to be anindustrial dispute, the other provision contained in Section 12(5)of the Act need not be gone into.16. Under Section 20 of the Industrial Disputes Act, it isspecifically provided that the Conciliation Proceedings should bedeemed to have commenced on the date on which a notice of strikeor lock-out under Section 22 is received by the ConciliationOfficer and such conciliation proceedings should be deemed to haveconcluded either on account of a settlement reached between theparties or in its absence the failure report of the ConciliationOfficer is received by the appropriate Government or when areference is made with reference to the said dispute to a Courtunder Section 10 of the Act, even during the pendency of theconciliation proceedings. Section 22 imposes a statutoryprohibition in relation to strikes and lock-outs in a publicutility service. 17. When the above provisions are examined, I finddistinctive features in relation to a collective dispute fallingsquarely under Section 2(k) of the Industrial Disputes Act,vis-a-vis, the procedure contemplated under Section 12, 20 and 22of the Industrial Disputes Act as regards the sequences andconsequences of conciliation talks in relation to the saiddispute, in contrast to an individual dispute raised under Section2A of the Industrial Disputes Act, which by virtue of a fictioncreated under the said provision, deemed to be an industrialdispute for which a separate procedure is prescribed to deal with https://hcservices.ecourts.gov.in/hcservices/ such dispute by the conciliation machinery under Section 2A(2)read along with Section 12 (1) to (4) and the corresponding rulesviz. Rules 25A and 25B of the Tamil Nadu Industrial DisputesRules.18. It is well settled that a collective dispute underSection 2(k) of the Industrial Disputes Act is one whichencompasses very many issues viz., differences between employersand employers or between employers and workmen or between workmenand workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions oflabour, of any person. Whereas, a dispute under Section 2Aconcerns only an individual workman and that too with reference tohis non-employment either by way of discharge, dismissal,retrenchment or termination in any other form. Since the raisingof an industrial dispute even in regard to an individual workmanin relation to his non-employment was also covered by Section 2(k)and since such affected individual workmen were facingdifficulties in their non-employment issues being raised by way ofa collective industrial dispute, the legislature thought it fit toease out the situation by introducing Section 2A to enable suchindividual workman to sort out their grievances as regards theirnon-employment by raising an industrial dispute without anysupport from any other workman or body of workmen. The Amendmentby way of Tamil Nadu Act 5 of 1988 provides a further relaxationenabling the concerned individual workman to invoke Section 2A(2)of the Industrial Disputes Act to approach the concernedadjudicating machinery viz. the Labour Court without waiting forany reference to be made under Section 10 of the IndustrialDisputes Act. 19. Therefore, in the present juncture after the introductionof Section 2A in the present form as set out in the IndustrialDisputes Act, it can no longer be said that any dispute coveredunder the said provision should still be equated to the density ofa dispute governed by Section 2(k) of the Act read along withSection 10 and the consequential procedure applicable to such adispute. In as much as the legislature has though it fit toenable the concerned individual workman to seek for a remedy incase of non-employment either at the conciliation level or forgetting it adjudicated by approaching the Labour Court withoutmuch effort, it will have to be held that such a dispute fallingunder Section 2A will have to be treated differently then the onecovered by Section 2(k) and the consequential procedure set downin dealing with such dispute.20. Keeping the above said legal background in relation to anindividual dispute covered by Section 2A(2) when the otherprovisions connected thereto are considered and examined, it will https://hcservices.ecourts.gov.in/hcservices/ have to be held that when an individual workman raises anindustrial dispute by invoking Section 2A, in the event of failureof such dispute before the Conciliation Officer, what all requiredis that as soon as the intimation is received from theConciliation Officer of the failure report of such conciliation,he will have to straightaway move the appropriate Labour Courtwithin whose jurisdiction the said dispute falls by filing anapplication in Form C-1. Along with Form C-1 a copy of theintimation received from the Conciliation Officer will have to befiled and thereafter the concerned Labour Court will deal with thesaid dispute and adjudicate the same as per the procedureprescribed under the Act. 21. The question for consideration is when such a dispute israised by the workman by invoking Section 2(A) of the IndustrialDisputes Act on his own, can it be held that even after thereceipt of intimation about the failure of the said dispute by theConciliation Officer and communicated by the said officer in themanner prescribed under Rules 25A and 25B, it can still be heldthat the conciliation proceeding continue to remain pending unlikea dispute raised under Section 2(k) of the Industrial DisputesAct, wherein after the failure of conciliation, the report asprescribed under Section 12(4) of the Industrial Disputes Act hasto be forwarded to the Government and the appropriate Governmentwill have to examine the scope of making a reference of the saiddispute as contemplated under Section 10 of the IndustrialDisputes Act. Therefore, the situation as between the disputeraised under Section 2A and the one raised under Section 2(k) areentirely different in its composition. 22. A dispute under Section 2(k) would cover all sorts ofdisputes by nature of the definition contained in the saidprovision whereas under Section 2A, the dispute is restricted toan individual workman and that too in relation to hisnon-employment alone. While under Section 2(k) a reference ismade by a specific order passed by the State Government, inrespect of a dispute raised under Section 2A by virtue of TamilNadu Act 5 of 1988 by invoking Section 2A(2) immediately after thereceipt of the failure report, the workman concerned canstraightaway approach the Labour Court along with a copy of theintimation received from the Conciliation Officer. Keeping thenuances relating to the disputes falling under Section 2(k) andSection 2A in mind, the restrictions imposed under Section 33 ofthe Industrial Disputes Act along with the other provisions haveto be examined.23. Under Section 33, the restrictions are three fold. Whileunder sub-section (1) permission is required to be obtained fromthe Authority before whom the proceeding is pending, under sub- https://hcservices.ecourts.gov.in/hcservices/ section (2) approval of the said Authority has to be obtained.Under sub-section (3) in respect of protected workman priorpermission will have to be obtained from the very same Authority.One common requirement prescribed in all the three sub-sections ofSection 33, is that either the permission or the approval willhave to be obtained from the Authority before whom either theconciliation proceedings or dispute is pending consideration. Oneother special feature of Section 33 is that it contemplates themaintenance of either conditions of service in relation to theworkman concerned to remain unaltered or the termination ofemployment of any of the workman concerned in the dispute; duringthe pendency of the conciliation proceedings or the industrialdispute as the case may be; depending upon the order to be passedby the Authority concerned as the case may be.24. While considering the scope and ambit of Section 33, theHon'ble Supreme Court in an earlier decision reported inAutomobile Products of India Ltd vs. Rukmaji Bala (1955) 1 LLJ346 took the view that the purpose of the prohibitions containedin Section 33 were two fold viz., on the one hand, they aredesigned to protect the workmen concerned during the course ofindustrial conciliation, arbitration and adjudication, againstemployer's harassment and victimisation, on account of theirhaving raised the industrial dispute or their continuing the'pending proceedings', while on the other hand they seek tomaintain status quo by prescribing management conduct which maygive rise to 'fresh disputes which would further exacerbate thealready strained relations between the employer and the workmen'.In a later decision reported in Boisahabi Tea Estate vs.Presiding Officer, Labour Court, Dibrugarh 1981 Lab IC 557 it washeld that the Section is made for the protection of 'the workmanconcerned in the dispute' against victimisation by an employer onaccount of his having raised an industrial dispute or his being aparty to a pending industrial proceeding and to ensure thatpending industrial disputes are brought to an expeditiousdetermination in a peaceful atmosphere, without being disturbed byany subsequent cause tending to accelerate or deteriorate thealready strained relationship between the management and theworkman. In yet another decision, the Hon'ble Supreme Court heldthat in all cases, where industrial disputes are pendente litebefore an authority mentioned in Section 33, it was thoughtnecessary that such disputes should be conciliated or adjudicatedupon by the authority in a peaceful atmosphere, undisturbed by anysubsequent causes for bitterness or unpleasantness. In order toachieve the said object, a ban was imposed upon the employer fromexercising his common law, statutory or contractual right toterminate the services of his employees or alter the terms of suchservices to their prejudice. https://hcservices.ecourts.gov.in/hcservices/

25. It will have to be stated therefore that the said twoexpressions 'pending conciliation proceeding' or 'pending dispute'in relation to a comprehensive collective industrial dispute underSection 2(k) in contrast to the one falling under Section 2A willhave to be analyzed independently and there cannot be anyblindfolded approach to the vexed question. As stated earlier,the complexities in relation to an industrial dispute fallingunder Section 2(k) varies in very many degrees when compared to anindustrial dispute covered by Section 2A of the Act. When thepurport of the ban imposed under Section 33 as highlighted by theHon'ble Supreme Court are applied, it will have to be held that inrespect of an industrial dispute falling under Section 2(k) whichinvariably concerns a collective dispute backed by substantialsection of workmen, any alternation either in the terms ofemployment by resorting to termination of any employee connectedwith the dispute will have far reaching consequences and thatwould have very serious impact in dealing with the dispute eitherby the Conciliation Officer or by the adjudicating authority. 26. The complexity and nature of consequences arising out ofan industrial dispute under Section 2(k) is far different from theindustrial dispute falling under Section 2A of the Act. It istherefore imperative that a new look is made while considering thedispute falling under Section 2A as compared with the one fallingunder Section 2(k) of the Act vis-a-vis the application of Section33 of the Act. Though the applicability of Section 33 of theIndustrial Disputes Act in respect of an industrial disputefalling under Section 2(k) as well as the one falling underSection 2A is common, having regard to the nature and extent ofimpact in respect of the violation of Section 33 of the Act indifferent situations, I am of the view that having regard to thespecified procedure prescribed under Rules 25A and 25B of theTamil Nadu Rules in respect of the conclusion of the conciliationproceeding in respect of the dispute covered by Section 2A of theAct, a stringent application to all the procedure as it has beencontemplated in respect of the conclusion of the conciliationproceedings in respect of an industrial dispute falling underSection 2(k) cannot be ipso facto applied. In other words whilein respect of an industrial dispute covered by Section 2(k) andthe commencement of conciliation proceeding by virtue ofapplication of Section 22(1) of the Industrial Disputes Act inrespect of public utility service and thereby the prescriptioncontained under Section 20(2) of the Industrial Disputes Act comesinto play in order to ascertain the conclusion of conciliationproceedings, it looms large in ones mind whether such a procedureshould be extended even to a dispute covered under Section 2A ofthe Act. When the various implications of Section 33 as laid downby the Hon'ble Supreme Court are examined, I find one factor https://hcservices.ecourts.gov.in/hcservices/ stated in the earliest case reported in Automobile Products ofIndia Ltd vs. Rukmaji Bala (1955) 1 LLJ 346 was that during thecourse of industrial conciliation, arbitration and adjudication,the employers harassment by way of victimization should not beallowed on account of a dispute raised by the workmen which ispending. The very expression used by the Hon'ble Supreme Courtnamely “industrial conciliation, arbitration and adjudication” isreferred only to a larger issue concerning the whole lot ofworkmen and in that situation, the employer should not be allowedto create a dent in the process of conciliation by resorting toany change in the working condition including by way of discharge,dismissal, retrenchment or any other form of termination.Apparently, when the collective dispute concerning the entirelabour force is pending before the conciliation machinery, it isquite understandable that the attempt of the Conciliation Officerin bringing about a settlement should not be allowed to bethwarted by any party to the dispute by indulging in any actionthat will mar the process of conciliation. When the said basicconcept contemplated of in relation to a collective dispute iscompared with a deemed industrial dispute relating to a singlecase of non-employment, it is very difficult to hold that the saidconcept can be ipso facto applied irrespective of itsconsequences. Even in the case on hand, admittedly, the disputeoriginally raised by the second respondent was with reference tohis alleged non-employment from 21.02.2004. When he raised thesaid dispute on 27.04.2004, the second respondent was very much inthe service of the petitioner. The said fact was brought to thenotice of the Conciliation Officer in the petitioner's reply dated21.07.2004, therefore, there was no dispute at all, much less, adispute of non-employment of the second respondent with referenceto which any conciliation could have taken place. The case ofnon-employment pleaded by the second respondent was therefore animaginary one. 27. In my humble opinion the legislature having carved outthe dispute relating to non-employment of the individual workmanbe governed by Section 2(A) of the Act by prescribing a more easyprocedure and the State Government having further liberalised thesaid procedure to enable the workman to straightaway approach theconcerned Labour Court on receipt of the intimation from theConciliation Authority, the initiation and conclusion of the saidproceeding will have to be examined by restricting the scope andambit of the said procedure within a limited prescriptioncontained under Section 2A of the Act read along with Rules 25Aand 25B of the Tamil Nadu Industrial Disputes Rules. I say sobecause the individual dispute of non-employment concernsthat single workman alone, where the broader principle set out inrelation to an Industrial Dispute falling under Section 2(k) need https://hcservices.ecourts.gov.in/hcservices/ not necessarily be applied and thereby making the procedure morecumbersome as that will not be in the interest of the workmenconcerned in the dispute relating to his non-employment. Afterall the intention of the legislature can be easily visualised tothe extent that such a dispute of non-employment of individualworkman will have to be conciliated upon quickly and in the eventof its failure, to be adjudicated upon at the earliest possibletime. If that be so, the prescription contained in Section 20(2)of the Industrial Dispute Act to the effect that conciliationproceeding can be said to conclude only on the date of receipt ofa failure report by the appropriate Government will have to berestricted to in respect of the disputes governed by Section 2(k)and 22 of the Industrial Disputes Act and the same need not and tobe more precise should not be extended to a dispute covered bySection 2A of the Industrial Disputes Act.28. In other words, while the violation of Section 33 of theIndustrial Disputes Act will get attracted in respect of anindustrial dispute whether it be raised under Section 2(k) orunder Section 2A of the Act, the stringent prescription of receiptof conciliation proceedings by the State Government as stipulatedunder Section 20(2) of the Act can be applied in all fours inrespect of a substantive industrial dispute covered by Section 2(k) of the Act, the same will not be the case in respect of adispute covered by Section 2A of the Act. It will have to bereiterated that only by way of a fiction created under Section 2A(1), the individual dispute relating to non-employment is deemedto be an industrial dispute. By creating such an easy procedurefor raising an industrial dispute under Section 2A and also seekfor adjudication of the said dispute by invoking Section 2A(2) ofthe Act, the legislature mainly intended to ensure that anindividual dispute relating to non-employment should not drag onfor an indefinite period and that it should reach its conclusionat the earliest point of time. That is the reason why the StateGovernment while inserting sub-section (2) to Section 2A thoughtit fit to add on Rules 25A and 25B to enable the individualworkman to move the adjudication forum viz. the Labour Courtwithout waiting either for the receipt of the conciliation reportby the appropriate Government or any reference being made underSection 10 of the Act. In respect of those disputes, what allrequired is the enclosure of a copy of the intimation receivedfrom the Conciliation Officer along with Form-C1 to ignite theLabour Court to commence the adjudication process, no sooner theconciliation proceedings ends in failure. In this context whenthe decision of the Hon'ble Supreme Court reported in AIR 1999 SC2422 (M/s. Sardar Construction Co., Vs. State of Gujarat) reliedupon by the second respondent is referred to, in the first placeit will have to be noted that the said decision came to berendered in respect of a collective dispute concerning more than https://hcservices.ecourts.gov.in/hcservices/ one workman which was pending, wherein the question as to when theconciliation came to an end was considered. It was in thatcontext, the Hon'ble Supreme Court by referring to Section 20(2)(b) of the Act held that the conciliation proceeding should bedeemed to have concluded only when the failure report of theConciliation Officer is received by the appropriate Government.Having regard to the distinction made out as between a collectivedispute falling under Section 2(k) and an individual disputefalling under Section 2A, the ratio of the said decision can haveno application. I am convinced that the question of conciliationfailure report being received by the State Government, in order toascertain whether the proceedings have come to an end will notapply to a case of an individual dispute. 29. While referring to the above decision of the Hon'bleSupreme Court, it will be useful to refer to an earlier decisionof the Hon'ble Supreme Court reported in 1975 4 SCC 332(Chemicals & Fibres of India Ltd., Vs. D.G.Bhoir). That was aconverse case where the question was, whether the ban imposedunder Section 23 of the Industrial Disputes Act will equally applyto an individual dispute covered by Section 2A of the IndustrialDisputes Act. That was a case where an individual dispute raisedunder Section 2A of the Act came to be referred for adjudicationto the Labour Court under Section 10(1)(c) of the Act, whichrelates to dismissal of a single workman. During the pendency ofthe said dispute three other workmen were also dismissed, whichresulted in a strike in the factory of the management. As asequel to it, 312 employees came to be discharged and 12applications were filed for approval of such discharge before theIndustrial Tribunal on the ground that reference was pendingbefore it. The management contended that the strike was illegalby virtue of the pendency of Section 2A dispute vis-a-vis theban imposed under Section 23 and 24 of the Industrial DisputesAct. Dealing with the said issue, the Hon'ble Supreme Court madea distinction as between a collective dispute falling underSection 2(k) and an individual dispute falling under Section 2A ofthe Act. After a detailed reference to almost all the relevantprovisions of the Act, the Hon'ble Supreme Court has stated thelegal position has under in paragraphs 5 & 7 viz.,"5......The prohibition of strikes during thependency of proceedings before a Labour Court, Tribunalor National Tribunal under Section 23 was, in the Act asoriginally enacted, confined only to disputes betweenthe employer and the general body of employees and notto individual workmen. It is in that context thatSection 23 should be interpreted. In the case of anindustrial dispute between an individual workman and theemployer the whole elaborate machinery earlier set forth https://hcservices.ecourts.gov.in/hcservices/ of the Industrial Disputes Act may not be necessary lestit would be like using a sledge-hammer to kill a flea.While there is justification for preventing a strikewhen a dispute between the employer and the general bodyof workmen is pending adjudication or resolution, itwould be too much to expect that the legislatureintended that a lid should be put on all strikes justbecause the case of a single workman was pending. Thatthe general body of labour should be prevented fromresorting to strike where they had chosen to espouse thecause of a single workman is understandable andreasonable. It has even been held that if the employerand workmen are parties to a reference the decisiontherein binds them even though they may have said theywere not interested in it (Ballarpur Collieries v.Presiding Officer). But if strikes are to be prohibitedmerely because the case of an individual workman waspending, whose case had not been espoused by the generalbody of the workmen, there can never be any strike evenfor justifiable grounds. A strike is a necessary safetyvalve in industrial relations when properly resorted to.To accede to the contention of the employer in this casewould be in effect acceding to a contention that thereshould never be a strike. While we realise theimportance of the maintenance of industrial peace, itcannot be secured by putting a lid on the legitimategrievances of the general body of labour because thedispute relating to an individual workman under Section2-A is pending. That might mean that the boilingcauldron might burst. In that case the general body ofworkmen would be legitimately aggrieved that they areprevented from striking because an individual’s case waspending with which they were not concerned. It is notenough in this situation to say that it is always opento the Government to make a reference under Section 10.It may or may not happen. Furthermore, the matters thatcould be pending before a Labour Court under Section 23under the Second Schedule are:“1. The propriety or legality of an orderpassed by an employer under the standingorders;2. The application and interpretation ofstanding orders;3. Discharge or dismissal of workmen includingreinstatement of, or grant of relief to,workmen wrongfully dismissed;4. Withdrawal of any customary concession or https://hcservices.ecourts.gov.in/hcservices/ privilege;5. Illegality or otherwise of a strike orlock-out; and6. All matters other than those specified inthe Third Schedule.”The propriety or legality of an order passed by anemployer under the standing orders very often mightrefer to an individual workman and that should not bemade the reason for preventing labour from giving ventto its legitimate grievances in a legitimate way.6......7. We are therefore of opinion that the properpoint of view from which to look at the problem is togive limited application to the fact of the introductionof Section 2-A in the Industrial Disputes Act and tohold that the pendency of a dispute between anindividual workman as such and the employer does notattract the provisions of Section 23."30. The said decision came up for consideration before theHon'ble Supreme Court in the subsequent decision reported in 19996 SCC 275 (Lokmat Newspapers Pvt. Ltd. Vs. Shankarprasad), whiledistinguishing the said decision in the facts and circumstances ofthe case dealt with by the Hon'ble Supreme Court, the legalposition as regards the pendency of an individual dispute fallingunder Section 2A vis-a-vis Section 33 of the Act, has been lucidlyset out by the Hon'ble Supreme Court in paragraph 28 which readsas under:"28.....Learned counsel for the appellant in supportof his contention seeking a dichotomy between the conceptof pendency and concept of deemed conclusion ofproceedings placed strong reliance on a decision of thisCourt in Chemicals & Fibres of India Ltd. v. D.G. Bhoir.In that case this Court was concerned with an entirelydifferent situation under Section 2-A of the ID Act afterit was brought on the statute-book. As per thisprovision, an individual dispute raised by a workman whohad suffered dismissal from service was to be consideredas an “industrial dispute” within the meaning of therelevant provisions of the Act so that such a disputecould be conciliated upon, arbitrated or could be https://hcservices.ecourts.gov.in/hcservices/ referred for adjudication before competent authoritiesunder the Act. For that limited purpose, an individualworkman could be said to have raised an industrialdispute. The question before this Court was whetherraising of such a dispute by an individual workman whichwas not sponsored by a large body of workmen couldattract Section 33 of the ID Act even qua other workmenwho had nothing to do with this individual dispute.Answering the question in the negative, it was held bythis Court that the fiction created by Section 2-A had alimited effect and could not be pressed into service forapplicability of Section 33(1) in connection with lockoutqua other workmen who were not parties to the saidindustrial dispute. In that case during the pendency ofsuch individual dispute the appellant Company before thisCourt discharged about 312 of its employees and filed 12applications before the Industrial Tribunal for approvalof such a discharge on the ground that a reference waspending before it. The question was whether theseapplications were maintainable for approval under Section33(1) when the dispute which was pending before theIndustrial Tribunal was one under Section 2-A of the IDAct. In this connection, it was held by this Court thatthe legal fiction created by Section 2-A had a limitedeffect and those workmen who were not parties to such adispute, if had gone on strike, it could not be said thattheir strike was necessarily illegal....." (emphasisadded)31. The second respondent placed reliance upon the decisionreported in AIR 1955 SC 258 (Automobile Products of India Ltd.,Vs. Rukmaji Bala) in particular paragraph 8. The Hon'ble SupremeCourt in that particular paragraph 8 while considering Sections 23and 29 of the Industrial Disputes (Appellate Tribunal) Act, 1950,set out four relevant concepts to be noted. Since we are notconcerned with the said provisions in the case on hand, I am notdealing with the contentions based on the said judgment in thisorder. In the other decision relied upon by the second respondentin AIR 1966 SC 380 (Tata Iron and Steel Co. Ltd., Vs. S.N.Modak),the Hon'ble Supreme Court held that Section 33A has conferred onindustrial employees a very valuable right of seeking theprotection of the Industrial Tribunal in case their rights havebeen violated contrary to the provisions of Section 33. TheHon'ble Supreme Court however made it clear that the grievancerelating to such violation can be raised by way of a complaintunder Section 33A only to the specified Authority who will have todeal with the case as if it were an industrial dispute. There canbe no quarrel with regard to the said proposition. The questionas to whether the second respondent has preferred his complaint in https://hcservices.ecourts.gov.in/hcservices/ accordance with the said prescription before the concernedauthority will have to be seen. Even in the decision reported inAIR 2002 SC 643 (Jalpur Z.S.B.V Bank Ltd., Vs. Shri Ram GopalSharma) relied upon by the second respondent, the Hon'ble SupremeCourt has held that Section 33A is available to an employee and itis intended to save his time and trouble in as much as it makes acomplaint before the very Authority where the Industrial Disputeis already pending between the parties, instead of making theefforts to raise an industrial dispute for the purpose ofadjudicating the issue relating to non-employment. 32. It is common ground that when the second respondentraised the dispute under Section 2A(2) of the Act, he was in theservices of the petitioner and the failure report was admittedlyreceived by both the parties on 02.09.2004. The termination ordercame to be passed only on 08.09.2004, which was received by him on09.09.2004 at 4.00 pm. 33. Going by the above factual matrix, it can be safely heldthat after the receipt of the Conciliation failure report dated24.08.2004 and later after the termination order dated 08.09.2004,the second respondent filed a complaint before the firstrespondent Labour Court under Section 33 A of the Act on27.09.2004. Assuming for a moment that such a complaint filed inthe office of the first respondent can be entertained, going bythe details of the dates mentioned above and in the light of myconclusion that the receipt of the failure report results inconclusion of the conciliation proceeding themselves, there was noscope for invoking Section 33A of the Act at the instance of thesecond respondent. I therefore hold that there was no violation ofSection 33 at all in order for the second respondent to prefer acomplaint under Section 33A of the Industrial Disputes Act. Iaccordingly answer the question as above. 34. The next question for consideration is whether acomplaint under Section 33A of the Industrial Disputes Act aspreferred by the second respondent was maintainable before thefirst respondent Labour Court. Before dealing with the saidquestion, it is necessary to briefly refer to the earlier order ofthe Labour Court passed in I.A.No.73 of 2006 in I.D.No.465 of 2004by the first respondent and the subsequent orders of the learnedSingle Judge of this Court in W.P.No.22221 of 2006 dated10.10.2006, the Division Bench Judgment dated 22.12.2006 inW.A.No.1324 of 2006 and the order of the Hon'ble Supreme Courtdated 25.01.2007, passed in S.L.P. (Civil) No.662 of 2007.35. When the second respondent preferred his complaint underSection 33A, the same came to be entertained by the firstrespondent Labour Court as an industrial dispute and the https://hcservices.ecourts.gov.in/hcservices/ proceedings was numbered as I.D.No.465 of 2004. In fact in thesaid petition dated 27.09.2004, itself, the second respondentthough stated that he preferred the said proceedings under Section33A of the Industrial Disputes Act, in the cause title portion, itwas mentioned as an industrial dispute. Apparently misled by thenomenclature given by the second respondent, the office of thefirst respondent appeared to have numbered the said proceeding asan industrial dispute by registering it as I.D.No.465 of 2004.The petitioner filed its counter statement on 27.12.2005. Muchlater on 11.03.2006, the second respondent filed I.A.No.73 of 2006pointing out that what was preferred by him was a complaint underSection 33A and not an industrial dispute. A counter statementwas filed on behalf of the petitioner opposing the saidapplication inter alia contending that Section 33A complaint couldnot have been preferred before the first respondent Labour Courtand therefore what was preferred was only a dispute falling underSection 2A(2) of the Industrial Disputes Act. By an order dated23.06.2006, the first respondent Labour Court held that the claimmade by the second respondent will have to be entertained as acomplaint under Section 33A and will have to be disposed of assuch and examine whether there was any violation of Section 33 ofthe Industrial Disputes Act. The first respondent went on tostate that the second respondent will be at liberty to file anindustrial dispute under Section 2A(2) of the Industrial DisputesAct, based on the failure report of the Assistant Commissioner ofLabour dated 24.08.2004, if he so desired.36. The writ petition preferred by the petitioner inW.P.No.22221 of 2006 as against the order of the first respondentdated 24.08.2004 was also dismissed by a learned Single Judgeholding that by the conversion of the dispute as a complaint, theright of the petitioner Management available under the provisionsof the Industrial Disputes Act was not taken away. In fact theonly issue involved in the writ petition was the correctness ofthe order of conversion of the industrial dispute as a complaintunder Section 33A. The question whether there was any violationof Section 33 of the Industrial Disputes Act and thesustainability of the alleged violation was not required to beconsidered at that stage. Therefore, the said order of thelearned Single Judge only confirmed that the Labour Court wasfully justified in converting the Industrial Dispute as acomplaint under Section 33A of the Industrial Disputes Act.37. When the petitioner challenged the order of the learnedsingle Judge in W.A.No.1324 of 2006, the Division Bench alsoconfirmed the order of the learned Single Judge. The DivisionBench however took a view that in the case on hand, there was noinformation as to when the Government received the failure reportin terms of Section 20(2)(b) of the Industrial Disputes Act. https://hcservices.ecourts.gov.in/hcservices/ Therefore, in the absence of such relevant information, it shouldbe held that the proceedings before the Assistant Commissioner ofLabour has to be considered as not concluded and deemed to bepending. Even before the Division Bench, the discussion centeredaround Section 20(2) of the Industrial Disputes Act. Ultimately,the Division Bench also held that in as much as the decision ofthe Labour Court only prima facie concluded for the disposal ofI.A.No.73 of 2006, they are unable to accept the contention of theManagement that the Labour Court has gone into the merits and pre-concluded the issue. So holding, the Division Bench also declinedto interfere with the order of the Labour Court as well as that ofthe learned Single Judge. The Special Leave Petition preferred bythe petitioner also ended in a failure as the same was dismissedby the Hon'ble Supreme Court on 25.01.2007. 38. The above orders in my considered opinion has notconcluded the issue as regards the sustainability of the complaintbefore the first respondent in as much as both the learned SingleJudge as well as the Division Bench have ultimately held thatwhatever stated by the Labour Court was only for the purpose ofdisposal of I.A.No.73 of 2006, which was only for converting theindustrial dispute as a complaint under Section 33A. After theconversion was thus allowed by the Labour Court and also confirmedby this Court as well as the Hon'ble Supreme Court, the real issuehad to be necessarily examined by the first respondent LabourCourt which relates to its maintainability as well assustainability. In this respect, I am fortified by the followingdecisions. In the decisions reported in Mayuram SubramanianSrinivasan Vs. CBI (2006 5 SCC 752), the Hon'ble Supreme Court hasheld as under in paragraph 10 and 11:“10. In State v. Ratan Lal Arora it was held thatwhere in a case the decision has been rendered withoutreference to statutory bars, the same cannot have anyprecedent value and shall have to be treated as havingbeen rendered per incuriam. The present case stands on apar, if not on a better footing. The provisions ofSection 439 do not appear to have been taken note of. 11......To perpetuate an error is no heroism. Torectify it is the compulsion of the judicialconscience......”Similarly in the decision reported in Union of India and AnotherVs. Manik Lal Banerjee reported in (2006 9 SCC 643), theHon'ble Supreme Court has held as under in paragraph 19 as under: https://hcservices.ecourts.gov.in/hcservices/ “19. It is now well settled that if a decision hasbeen rendered without taking into account the statutoryprovision, the same cannot be considered to be abinding precedent. This Court in Pritam Singh whileexercising its discretionary jurisdiction, might haverefused to interfere with the decision. The same,therefore, did not constitute any binding precedent.The Tribunal and consequently the High Court,therefore, committed a manifest error in holdingotherwise.”It will also be worthwhile to refer to the decision of the learnedSingle Judge of the Bombay High Court reported in AIR 1972 Bom152 (Shivamurti Vs. Vijaysing Vinayakrao Dubhe). The learnedSingle Judge has stated the legal position as under in paragraph4:“4......It is a platitude that hard cases make badlaw. In such cases, the remedy, if any, lies with thelegislature and not with the court which must interpretan enactment as it stands.”The said principle was also followed by this Court in the decisionreported in The State of Tamil Nadu, represented by theAccommodation Controller Vs. K.N.Dhanasekaran (1980 1 MLJ 395).In the Division Bench decision of the Bombay High Court reportedin Maruti Babaji Vadekar Vs. Ramchandra Balvant Punekar (1931 33BOMLR 396) the Division Bench as held as under in paragraph 16:“16......We must bear in mind the course that hardcases make bad law—as the saying is—and that if the lawis clear then it must not be strained or unreasonablystretched even for the purpose of avoidinginjustice.......”39. With that view, when I examine the alleged violation ofSection 33 of the Industrial Disputes Act as a complaint by thesecond respondent, in the foremost it will have to be held that inorder to invoke Section 33A the basic requirement is it should belaunched only before the concerned authority before whom the socalled proceedings are pending during which the alleged violationof Section 33 has taken place. The very opening words of Section33A are to the effect that Where an employer contravenes theprovisions of Section 33 during the pendency of the proceedingsbefore a Board, Conciliation Officer, etc., any employee aggrievedby such contravention, may make a complaint in writing in theprescribed manner to such Conciliation Officer or such otherAuthority and that such complaint should be taken into account by https://hcservices.ecourts.gov.in/hcservices/ the concerned Conciliation Officer in mediating and promoting thesettlement of such industrial dispute. Therefore, at the outsetit will have to be examined whether the present complaintpreferred by the second respondent before the first respondentLabour Court can be strictly held to be a proceeding maintainableunder Section 33A of the Act, in as much as no proceedings by wayof an industrial dispute was pending before the first respondentLabour Court. For a complaint under Section 33A to be maintainedbefore the first respondent Labour Court, there should have been adispute pending before it connected with the issue relating to thesecond respondent himself vis-a-vis the petitioner. 40. Going by the specific provisions contained in Section 33Aof the Act, it is difficult to accept that in respect of acomplaint which was preferred before the Assistant Commissioner ofLabour, a violation can be complained of by way of an applicationunder Section 33A. Such a procedure adopted by the secondrespondent was wholly impermissible in law while applying theprovisions contained in Section 33 A vis-a-vis the violationcomplained of under Section 33 of the Act. Therefore, at the verythreshold it will have to be held that a complaint preferred underSection 33A before the first respondent Labour Court in theabsence of any dispute pending before it concerning the secondrespondent was not maintainable at all. To put it differently, ifat all the first respondent were to entertain a complaint from thesecond respondent under Section 33A of the Industrial DisputesAct, there should have been a proceeding pending before the firstrespondent Labour Court concerning the second respondent. Onlythen there would have been any scope for the second respondent toallege any violation of Section 33 based on the dismissal orderdated 08.09.2004. It is unfortunate that the said basic andfundamental principle for application of Section 33A has beencompletely omitted to be considered by the first respondent LabourCourt while passing the order impugned in this writ petition.Therefore, I am constrained to hold that the complaint aspreferred by the second respondent under Section 33A of theIndustrial Disputes Act before the first respondent Labour Courtwas not maintainable at all. I answer the question accordingly.41. Even if it were to be held that Section 33A complaintbefore the first respondent was not maintainable it will have tobe found out, whether the first respondent Labour Court could havedealt with the claim of the second respondent in the proceedingswhich culminated into the impugned Award. Though on the face ofit, a complaint preferred under Section 33A was not maintainablebefore the first respondent Labour Court, I am of the view thatthe claim of the second respondent cannot be rejected on such ahyper technical ground. Merely because the second respondentcaptioned his claim under Section 33A, it cannot be held that the https://hcservices.ecourts.gov.in/hcservices/ application is really one falling under the said provision. Inany event, since in the earlier round of litigation, theconversion of the dispute as one under Section 33A, having beenallowed which was also confirmed by this Court, it will not beappropriate to reject the claim of the second respondent on thatpreliminarily ground. Further even as per Section 33A when thecomplaint is preferred before the Labour Court, such a complaintshould be adjudicated as if it were a dispute preferred before itand dealt with in accordance with the provisions of the Act andthe first respondent should submit its Award, to which the otherprovisions would apply. Therefore, if the complaint of the secondrespondent alleging violation of Section 33 is taken for its facevalue, the consequence would be that such a complaint will haveto be dealt with as if it were an industrial dispute and the firstrespondent should pass an Award accordingly. 42. The second respondent placed reliance upon the decisionof the Hon'ble Supreme Court reported in AIR 1960 SC 160 (PunjabNational Bank Ltd., Vs. All India Punjab National Bank Employees'Federation) and AIR 1978 SC 311 (Western India Match Co. Vs.Third Industrial Tribunal) and contended that the application madeunder Section 33A of the Act will have to be dealt with as if itis a reference under Section 10 of the Industrial Disputes Act.Therefore, I hold that even though the so-called complaintpreferred by the second respondent under Section 33A was notmaintainable in the stricto-senso of the relevant provisions, yetin the light of the fact that the complaint was authorised to beentertained by the Labour Court, as confirmed by this Court andthe Hon'ble Supreme Court, the first respondent Labour Court waswell justified in dealing with such a complaint on merits by wayof adjudicating it as an industrial dispute. Moreover, the claimof the second respondent in the petition filed by him before thefirst respondent Labour Court by alleging violation of Section 33was for a direction to set aside the order of termination and passappropriate orders. I therefore hold that even though theproceedings were initiated by the second respondent as one underSection 33A of the Industrial Disputes Act, having regard to theorders of this Court as well as the stipulations contained inSection 33A(2) of the Industrial Dispute Act, there was nothingwrong on the part of the first respondent Labour Court in dealingwith the merits of the claim of the second respondent byadjudicating the claim as though it was an Industrial Dispute. Itis well settled that mere reference to a wrong provision of lawwill not defeat the claim, if that claim is otherwise maintainablein law. Therefore, applying the said principle, when the secondrespondent had admittedly raised an industrial dispute allegingnon-employment under Section 2A(2) of the Act, there was everyjustification in dealing with the said dispute by the first https://hcservices.ecourts.gov.in/hcservices/ respondent Labour Court. Question No.(c) is answered accordingly.43. With this when I come to the last question as to thesustainability of the impugned Award and the relief to be granted,I find that before the first respondent Labour Court, thepetitioner preferred five applications in I.A.Nos.15 to 19 of2001. That apart the petitioner also filed an additional counterstatement in complaint No.1/2007, wherein the petitionerspecifically prayed for a full-fledged enquiry to be held andopportunity to be extended to the petitioner for oral as well asdocumentary evidence to be adduced to support the order ofdismissal. 44. In I.A.No.15 of 2007, the petitioner specifically prayedfor permission to reopen the complaint for the purpose of oral anddocumentary evidence on its side. In I.A.No.16 of 2007, thepetitioner pleaded for permission to file additional counter inthe complaint. In I.A.No.18 of 2007, the petitioner pleaded forreceipt of additional documents on its side. In I.A.No.19 of 2007the petitioner prayed for letting in oral evidence for marking thedocuments filed on its side. In I.A.No.17 of 2007, the petitionerwanted to summon the files from the Assistant Commissioner ofLabour in order to ascertain as to on what date, the failurereport was actually received by the State Government. By a commonorder dated 08.03.2007, the first respondent allowedI.A.Nos.15,16,18 and 19 of 2007 and dismissed I.A.No.17 of 2007.The second respondent preferred I.A.No.22 of 2007 claiminginterim relief which was however rejected by the first respondentalong with the above I.A. Nos.15 to 19 of 2007 by the said commonorder. 45. In the course of the cross examination of WW1 viz., thesecond respondent, the first respondent has passed the followingorder at the very inception viz., :-“17/04/007 rhl;rp ,d;W miHf;fg;gl;L rj;jpa gpukhzk;bra;tpf;fg;gl;L tprhhpf;fg;gLfpwhh;;:F/tp/:,il kD vz;/73-2006y; vw;gl;l cj;jutpd;go gphpt[ 2V(2)bjhHpw;jfuhW gphpt[ 33/V KiwaPlhf vLj;Jf;bfhs;sg;gl;lJ/bjhHpw; jfuhW Mf ,Ue;jnghJ gjpt[ bra;ag;gl;l Kjy;tprhuiziana ,g;nghJk; bjhlh;tjhy; Fw;wr;rhl;Lf;fs;Fwpj;J FWf;F tprhuiz njitapy;iy vd;Wk;. KiwaPl;ilbghWj;J kl;Lk; FWf;F tprhuizr;bra;jhy; nghJkhdJ https://hcservices.ecourts.gov.in/hcservices/ vd;Wk; ,k;kd;wk; vjph;kDjhuUf;F mwpt[Wj;JfpwJ/”(Emphasis added)Therefore, the petitioner was prevented from putting any questionto the second respondent in the course of the cross examination asregards the merits of the non-employment. Similarly in the courseof cross examination of MW1 also the first respondent Labour Courthas passed a similar order to the following effect:“vjpu;kDjuuh; jug;g[ tHf;Fiu"h; Fw;wr;rhl;Lf;fs; Fwpj;JkDjhuiu Fwf;F tprhuiz bra;a njitapy;iy vd ,k;kd;wk;mwpt[Wj;jpajhy; Fw;wr;rhl;Lf;fisg; bghWj;J kDjhuUk; Fwf;Ftprhuiz bra;af;TlhJ vd bjhptpf;fg;gl;lJ/ Ml;nrgida[ld; ,f;FWf;;F tprhuiz gjpt[ bra;ag;gLfpwJ”Therefore, while on the one hand the first respondent Labour Courtallowed the petitioner's application to reopen the evidence,marking of documents and also examining necessary witnesses,unfortunately prevented the petitioner from letting in anyevidence on the merits of the non-employment of the secondrespondent. In fact, in the additional counter statement filed inComplaint No.1 of 2007, a specific claim was made by thepetitioner that it should be permitted to let in evidence tosustain the order of dismissal. When once the complaint wasentertained and dealt with by the first respondent Labour Courtand was adjudicated upon as though it was an industrial disputerelating to the non-employment of the second respondent, there isno reason why the first respondent Labour Court prevented thepetitioner from either letting in any evidence on merits or fromputting any question to the second respondent as regards themerits relating to his non-employment. 46. At this juncture, it will be appropriate to reiterate asto how the non-employment of the second respondent as claimed bythe petitioner came into being. According to the petitioner thesecond respondent produced medical certificate dated 21.02.2004,certifying that he was under treatment for Acute Depression from09.02.2004 to 20.02.2004 and fit for duty from 21.02.2004. But onmedical examination by the Company's Medical Officer, he was notfound fit to resume work on 21.02.2004 also. The petitioner isstated to have therefore directed the second respondent to appearbefore the Medical Board of the Government Hospital, Chennai fortheir assessment and opinion with regard to the physical fitnessof the second respondent and that the second respondent failed toappear before the Medical Board and therefore his service had tobe terminated on the ground of medical unfitness in the ElectricalDepartment of the petitioner company. https://hcservices.ecourts.gov.in/hcservices/

47. Therefore it is for the petitioner to substantiate andjustify the said order of termination before the first respondentLabour Court. Unfortunately, since the first respondent LabourCourt has totally prevented the petitioner from letting in anyevidence on merits, the petitioner was denied a valuableopportunity in that respect. When the Impugned Award of the firstrespondent Labour Court is perused, I find that quite contrary toits own conclusion while recording the evidence of WW1 and MW1, itmade a specific statement in paragraph 13 that an enquiry inrespect of a complaint under Section 33A cannot be confined tocontravention of Section 33 alone and can go further and deal withthe merits of the order of discharge or dismissal. The firstrespondent Labour Court wanted to draw support to the saidconclusion on the decision of the Hon'ble Supreme Court reportedin Automobile Products of India vs. Rukman Bala reported in AIR1955 SC 258 and Punjab Beverages P. Ltd., vs. Suresh Chandreported in AIR 1978 SC 995. In para 15 it was held as follows:“15..... As per the above principle, the employerwho wants to avail the opportunity of adducingevidence for the first time before the Tribunal tojustify its action should ask for it at theappropriate stage. Here, the employer neither askedto adduce evidence to justify its action either in itscounter or at the appropriate stage. During crossexamination of W.W.1, the petitioner was not allowedto question with respect to merits. The fact remainsthat no enquiry was conducted before passing the orderof termination. Therefore, without leave to the Courtat the appropriate stage, the management is notentitled to adduce evidence to justify its action.The management has not sought for permission to adduceevidence and no evidence has been let in to justifyits action. Thus on merits also, the management hasfailed to prove that the petitioner was medicallyunfit to join duty. Therefore, the termination orderissued by the management is not valid. For theaforesaid reasons, the petitioner is entitled toreinstatement in service with backwages, continuity ofservice and all other attendant benefits and thepoints are answered accordingly.” (underlining ismine)It will have to be held that the said conclusion of the firstrespondent Labour Court was totally perverse, in as much as, itwas contrary to its own orders passed in I.A.Nos.15,16,18 and 19of 2007 dated 08.03.2007, wherein the first respondent LabourCourt itself permitted the petitioner to let in necessary evidencein support of its stand. However, at the time when evidence of https://hcservices.ecourts.gov.in/hcservices/ parties was recorded, curiously, the Labour Court prevented thepetitioner from dealing with the merits of the termination order.48. It is also necessary to reiterate that in the additionalcounter filed in Complaint No.1 of 2007, the petitioner raised aspecific plea for letting in necessary evidence in support of itsstand. When the above statements in the pleadings as well as theorder of the first respondent itself was staring at once face, itis unfortunate that the first respondent Labour Court hadcompletely omitted to note the above relevant factors whileadjudicating the complaint on merits. Furthermore, it was thefirst respondent who specifically prevented the petitioner fromcross examining the second respondent on merits and in tune withthe said action, it also directed the second respondent not to putany question on merits to the management witness. 49. The culmination of all the above factors lead to one andonly conclusion that the impugned Award cannot be sustained andaccordingly the same is set aside. While setting aside theAward, I feel it appropriate to remit the matter back to the firstrespondent Labour Court for a de novo enquiry, since the partieswill have to let in evidence on the merits of the non-employmentof the second respondent. The first respondent shall thereforepermit the petitioner as well as the second respondent to adducenecessary evidence in support of their stand. Therefore, whilesetting aside the impugned Award of the first respondent LabourCourt dated 10.05.2007, passed in Complaint No.1 of 2007, thedispute is remitted back to the file of the first respondent foradjudication on merits by permitting the petitioner as well as thesecond respondent to let in necessary evidence in support of theirrespective stand. In as much as the dispute is hanging fire forthe past more than 4 years, it is just and proper that the firstrespondent Labour Court carry out the above said exerciseexpeditiously preferably within three months from the date ofreceipt of the records along with a copy of this order. The writpetition stands allowed with the above direction to the firstrespondent Labour Court. All Miscellaneous Petitions are closed.No costs. Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ kkToThe Presiding Officer,I Addl. Labour Court,Chennai – 104.Copy to1.The Section Officer,Writ Section, High Court, Madras.2.The Section Officer (Record Section) High Court, Madras.+1cc to Mr.J.James, Advocate Sr 40281+1cc to Mr.A.Manokaran,Advocate Sr 39910VM (CO)km/29.7. W.P.No.23446 of 2007