THE HONOURABLE MR v. Thiruvalluvar Transport Corporation Ltd

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 25.7.2007CORAM:THE HONOURABLE MR.JUSTICE ELIPE DHARMARAOANDTHE HONOURABLE MR.JUSTICE S.PALANIVELUWrit Appeals No.1699 and 1700 of 2001Arumugam Pillai.. Appellant in both the W.As./ 2nd RespondentVs.1.Thiruvalluvar Transport Corporation Ltd., Thiruvalluvar House, Pallavan Salai, Madras-600002, rep.by its Managing Director2.The Presiding Officer, Industrial Tribunal, Madras.... Respondents/ Petitioner/ Ist RespondentWrit Appeals preferred under Clause 15 of the LettersPatent, as against the common order dated 17.8.2000, respectivelymade in W.P.Nos.8158 and 8157 of 1993 by the learned single Judgeof this CourtPrayer in W.P.Nos.8158 and 8157 of 1993:- Petition filed underArt 226 of Constitution of India praying for issuance of Writ ofCertioari to call for the records and to quash the award dated29.10.91 in complant NO.1/88; the order dated 29.10.91 inpetition 44/88 respectively on the file of the Ist respondentIndustrial Tribunal, Madras.For appellant: Mr.D.HariparanthamanFor R.1: Mr.Sanjay Mohan for M/s.S.Ramasubramanim Associates https://hcservices.ecourts.gov.in/hcservices/ COMMON JUDGMENTELIPE DHARMARAO, J.The appellant was the Junior Engineer (Civil) in the firstrespondent Corporation. He was served with a charge memo. dated10.4.1987 on the ground that himself, along with DriverK.Rajagopalan took a lorry from Marthandam depot on 18.3.1987 toTirunelveli Depot and took 150 bags of cement and cement bagswere unloaded in Tuticorin Depot, except about 10 bags and thathe unloaded two cement bags near Eranial village for his personaluse and that it was recorded in the Gate Register by Ponnappan,Security Guard, that there were eight bags of cement when thelorry entered Marthandam Depot.2. Based on the said charge, a domestic enquiry wascontemplated and since the Enquiry Officer held the appellantguilty of the charge, a punishment of dismissal from service wasinflicted upon the appellant on 17.8.1987. Thereafter, theManagement filed Approval Petition No.44 of 1988 before thesecond respondent Tribunal, seeking approval of their action ofdismissing the appellant. The appellant also filed a complaintunder Section 33-A of the Industrial Disputes Act, 1947,challenging the order of dismissal passed against him. Since theTribunal allowed the complaint filed by the workman and dismissedthe approval application filed by them, the Management filedW.P.Nos.8157 and 8158 of 1993 before this Court and since thelearned single Judge has allowed both the writ petitions, settingaside the Awards passed by the Labour Court, theappellant/workman has preferred both these appeals.3. We have heard the learned counsel for theappellant/workman and the learned counsel for the firstrespondent/Management.4. The learned counsel for the appellant would argue thatthe first respondent Management has not complied with themandatory requirements of Section 33(2)(b) of the IndustrialDisputes Act while passing the order of dismissal against theappellant/workman and therefore, it would vitiate the entireproceedings initiated by the Management and therefore, theTribunal is right in ordering the re-instatement of theappellant/workman with backwages and continuity of service, butthe learned single Judge, without appreciating the facts andcircumstances of the case in the manner required by law, hasupset the findings of the Tribunal. The learned counsel for theappellant would, therefore, pray to allow the writ appeals,setting aside the findings of the learned single Judge. https://hcservices.ecourts.gov.in/hcservices/

5. On the other hand, the learned counsel for the firstrespondent/Management would submit that when the Management hasfiled the Approval Application before the Tribunal and when it ispending before the Tribunal, well to the knowledge of theappellant/workman, the workman has subsequently filed hiscomplaint, suppressing the fact that an approval petition waspending and the Tribunal first taking up the complaint for anenquiry, dismissed the approval application, which is violativeof the well established principles of law. The learned counselfor the first respondent/Management would submit that the learnedsingle Judge has considered all the aspects of the case in theirproper perspective and has arrived at the right conclusion toallow the writ petitions filed by the Management, which needsonly approval, not set aside, from the hands of this Court andwould pray to dismiss both the writ appeals.6. Admittedly, the Enquiry Officer was a retired JudicialFirst Class Magistrate and no allegations of violation ofprinciples of natural justice or lack of opportunity have beenmade against the conduct of the enquiry. The learned counsel forthe appellant would strenuously harp on the point that the firstrespondent/Management has violated the mandatory provisions ofSection 33(2)(b) of the Industrial Disputes Act and hence theentire enquiry proceedings initiated by the firstrespondent/Management are null and void. In support of hiscontentions, the learned counsel for the appellant would cite thefollowing judgments of the Apex Court:1. M/s.FILMISTAN (P) LTD. vs. BALKRISHNA BHIWA AND ANOTHER [1971-II-LLJ335],2. CALCUTTA STATE TRANSPORT CORPORATION vs. Md.NOOR ALAM [1973-II-LLJ 248] AND3. JAIPUR ZILA SAHAKARI BHOOMI VIKAS BANK LTD. vs. RAM GOPALSHARMA AND OTHERS.7. There is no dispute regarding the propositions laid downby the Apex Court in the above judgments to the effect that theprovisions of Section 33(2)(b) of the Industrial Disputes Act aremandatory in nature.8. In the case on hand, the order of dismissal was passedagainst the appellant/workman by the first respondent/Managementon 17.8.1987 and thereafter they have filed Approval Petitionbefore the Labour Court, the papers of which were received by theLabour Court on 14.12.1987 and numbered as Approval petitionNo.44 of 1988. It is not in dispute that along with the order ofdismissal, the first respondent/Management has paid one month'ssalary to the appellant, in compliance of Section 33(2)(b) of theIndustrial Disputes Act. Subsequent to the filing of theApproval Petition, the appellant/workman has filed his complaint, https://hcservices.ecourts.gov.in/hcservices/ without mentioning about the pendency of the approval petitionfiled by the Management, on 4.1.1988 and the same was taken onfile as Complaint No.1 of 1988. In such circumstances, theLabour Court should have found that such a complaint would bemaintainable only when the Approval Petition has not been filedfor approval of the dismissal order passed against the workman,in which event, it would have confined its adjudication only tothe question involved in the Approval Petition viz. as to whetherthe enquiry was conducted in accordance with the principles ofnatural justice and a prima facie view can be taken regarding theguilt of the employee. But, the Tribunal without taking up theApproval Petition, which had been filed earlier, has taken up theComplaint filed by the appellant/workman first for considerationand has dismissed the Approval Petition filed by the Management,as a consequence of the decision arrived at by it in theComplaint. Thus, the Tribunal has committed an error of law,which has been set right by the learned single Judge by allowingthe writ petitions filed by the first respondent/Management.9. When there is no dispute that the firstrespondent/Management has paid one month's salary to the workmanalong with the dismissal order, it cannot be said that themandatory provisions of Section 33(2)(b) of the IndustrialDisputes Act have not been complied with by the firstrespondent/Management. Every case has to be decided on its ownmerits. Since the first respondent/Management has paid the onemonth's salary along with the dismissal order to the appellant,the same cannot be equated with the judgments relied on by thelearned counsel for the appellant wherein the Management has notpaid the one month's wages to the workman along with theirdismissal order. In this way, the judgments relied on by thelearned counsel for the appellant are very well distinguishablefrom the facts of the cases on hand.10. If the Tribunal had followed the procedure contemplatedunder the Act and the Rules, that is to say that if it had takenup the Approval Petition filed by the Management forconsideration first, the zone of consideration would have been adifferent one and it would have held that there is no violationof principles of natural justice since the Enquiry Officer hasfollowed all the procedure contemplated under law and on facts,has arrived at a conclusion that the appellant is guilty of thecharges levelled against him, which were upset by the Tribunal onan illegal procedure followed it. Such an illegal finding of theTribunal were correctly set aside by the learned single Judge. https://hcservices.ecourts.gov.in/hcservices/ For all the above reasons, we see no reason to entertainthese writ appeals and accordingly, they are dismissed. Nocosts. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.RaoTo1. The Presiding Officer,Industrial Tribunal,Madras2. The Managing DirectorThiruvalluvar transport CorporationPallavan Salai, Chenani.2.1 cc to Mr.D. Hariparanthaman, Advocate, Sr. 459001 cc to Mr. Ramasubramaniam, Advocate, Sr. 45932W.A.Nos.1699and 1700 of 2001MJ (CO)kk 7/8