High Court · 2009

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 24.11.2009CORAMTHE HONOURABLE Mr. JUSTICE K.CHANDRU W.P.Nos.18367, 18368 of 2008, 544 to 550 of 2009, 8181 to 8196of 2009, 16630 to 16633 of 2009andM.P.No.1 in W.P.Nos.18367, 18368 of 2008 and 16630 to 16633 of2009 andM.P.No.2 in W.P.No.544 to 556 of 2009 K.Balaraman .... Petitioner in WP 18367/2008P.Haridoss..Petitioner in WP 18368/2008N.Alfan-de-lara..Petitioner in WP 544/2009D.Mani..Petitioner in WP 545/2009K.Sundaramurthy..Petitioner in WP 546/2009T.Ganapathy..Petitioner in WP 547/2009T.Murthy..Petitioner in WP 548/2009P.Krishnan..Petitioner in WP 549/2009M.Murugan..Petitioner in WP 550/2009R.Kumar..Petitioner in WP 8181/2009R.Angamuthu..Petitioner in WP 8182/2009N.Shanmugam..Petitioner in WP 8183/2009K.Chinnappan..Petitioner in WP 8184/2009G.Vijayakumaran..Petitioner in WP 8185/2009G.Srinivasan..Petitioner in WP 8186/2009E.Mahalingam..Petitioner in WP 8187/2009 https://hcservices.ecourts.gov.in/hcservices/ G.Elumalai..Petitioner in WP 8188/2009G.Sundaravel..Petitioner in WP 8189/2009M.Kumar..Petitioner in WP 8190/2009K.Ramadass..Petitioner in WP 8191/2009R.Balasubramanian..Petitioner in WP 8192/2009A.Mohamed Abdul Khadar..Petitioner in WP 8193/2009D.Kubendran..Petitioner in WP 8194/2009K.Sankara Narayanan..Petitioner in WP 8195/2009G.Punniyakotti..Petitioner in WP 8196/2009V.Anandan..Petitioner in WP 16630/2009K.Louisa..Petitioner in WP 16631/2009A.Kadirvel..Petitioner in WP 16632/2009E.Ranganathan..Petitioner in WP 16633/2009Vs. 1.The Managing Director, Metropolitan Transport Corporation Limited, Anna Salai, Pallavan Illam, Chennai-600 002.3.The General Manager/Joint Managing Director, Metropolitan Transport Corporation Limited, Pallavan Salai, Pallavan Illam Chennai-600 002...Respondents in WP 18367,18368/2008, WP 544 to 550/2009 https://hcservices.ecourts.gov.in/hcservices/ The Joint Managing Director/General Manager,Metropolitan Transport CorporationAnnasalai, Pallavan Illan,Chennai-600 002. ..Respondent in WP 8181/2009,8182/2009,8183/2009,8184/2009,8185/2009,8186/2009,8187/2009,8188/2009, 8189/2009,8190/2009,8191/2009,8192/2009,8193/2009,8194/2009,8195/2009,8196/2009.1.The Joint Commissioner of Labour(Conciliation) Office of the Commissionerof Labour, Teynampet, Chennai-600 006.2.The Managing Director,Metropolitan Transport Corporation Ltd.,Annasalai Pallavan Illam, Chennai -600 002.3.The Joint Managing Director,Metropolitan Transport Corporation Ltd.,Anna Salai, Pallavan Illam,Chennai -600 002. ..Respondents in WP16630/20091.The Joint Commissioner of Labour (Conciliation),Office of the Commissioner of Labour,D.M.S Complex -Teynampet,Chennai-600 006.2.The General Manager (Administration)/The Joint Managing Director,Metropolitan Transport Corporation,Anna Salai, Pallavan Illam,Chennai 600 002...Respondent inWP 16631/2009,16632/2009,16633/2009 Prayer in W.P.No.18367/08:Writ Petition has been filed underArticle 226 of The Constitution of India for the issuance of writof certiorarified Mandamus, calling for the entire recordsconnected with the proceedings No.10807/sa.pi(O.Na)1/MTC/2007dated 10.7.2008 of the 1st respondent confirming the orderNo.10807/sa.pi(O.Na)1/MTC/2007 dated 8.1.2008 of the 2ndrespondent and quash the same, consequently, direct therespondent to reinstate the petitioner with continuity ofservice, all other attendant benefits and full back wages. https://hcservices.ecourts.gov.in/hcservices/ WP No.18368/2008: Writ Petition filed under Article 226 of theconstitution of India to issue a writ of Mandamus calling for theentire records connected with the proceedings No. 11272/Sa.Pi(O.Na)1/MTC/2007 dated 10.07.2008 of the 1st respondentconfirming the order No. 11272/Sa.Pi(O.Na) 1/MTC/2007 dated24.01.08 of the 2nd respondent and quash the same consequentlydirect the respondent to reinstate the petitioner with continuityof service all other attendant benefits and full back wages.WP No.544/2009: Writ Petition filed under Article 226 of theconstitution of India to issue a writ of certiorarified Mandamuscalling for the entire records connected with the proceedingsNo.9860/sa.pi(O.Na) 7/MTC/2007 dt 28.3.2008 of the 2nd respondentand quash the same consequently direct the respondent toreinstate the petitioner with continuity of service all otherattendant benefits and full back wages.WP No.545/2009 to WP 550/2009: Writ Petition filed under Article226 of the constitution of India to issue a writ ofCertiorarified Mandamus calling for the entire records connectedwith the proceedings No. 9082,15086,31713,16623,32212,17988/sa.pi(O.Na) 1,2,12,1,16,6/MTC/2007/2006/2005 dt 10.12.2007,14.8.2007,5.6.2008, 21.11.2007, 16.7.2007, 21.1.2008 of the 2nd respondentand quash the same consequently direct the respondent toreinstate the petitioner with continuity of service all otherattendant benefits and full back wages.WP No.8181/2009 to WP 8196/2009: Writ Petition filed underArticle 226 of the constitution of India to issue a writ ofCertiorarified Mandamus calling for the entire records connectedwith the proceedings Nos. 15144,11547,9112,8883, 9747, 17318,9196, 14609, 10960, 18280, 9879, 8765, 18378, 8736, 8847,9090/sa.pi(O.Na)15, 7, 8, 10, 15, 17, 4, 1, 6, 21, 14, 7,1,1, and8/MTC/2006 -2007,dt. 07.08.2007, 26.5.2008, 30.7.2007,8.2.2008,26.12.2007,27.7.2007,14.11.2007,20.3.2008,5.5.2008,9.10.2007,26.12.2007,17.6.2008,5.5.2008,28.3.2008 24.1.2008 and14.3.2008 of the respondent and quash the same consequentlydirect the respondent to reinstate the petitioner with continuityof service all other attendant benefits and full back wages.WP No.16630/2009 to WP 16633/2009: Writ Petition filed underArticle 226 of the constitution of India to issue a writ ofcertiorarified Mandamus calling for the entire records connectedwith the proceedings No. 11253,12900,10644 and 19191/ sa.pi(O.Na)6,1,6 and 8/ MTC / 2007,2008 dated 11.06.08,22.12.2008,7.5.2008and 9.2.2009 of the 2nd respondent and quash the same https://hcservices.ecourts.gov.in/hcservices/ consequently direct the 2nd respondent to reinstate thepetitioner with continuity of service all other attendantbenefits and full back wages. For Petitioners in all the W.Ps. : Mr.S.T.VaradarajuluFor Joint Commissioner of Labour : Mr.R.Neelakandan, G.A.(Conciliation), Chennai-6 For Respondents: Mr.Munirathinam for Transport CorporationC O M M O N O R D E R Heard Mr.S.T.Varadarajulu, learned counsel appearing for thepetitioners and Mr.R.Neelakandan, Government Advocate for LabourDepartment and Mr.Munirathinam, learned counsel takes notice forthe Transport Corporation.2.In all these writ petitions, the petitioners areemployees of the respondent Transport Corporation, which is awholly owned Government Company. The grievance of thepetitioners was that they were dismissed for a misconduct by therespondent Corporation. In some cases, they have also filedappeal before the Managing Director of the Corporation which havebeen rejected. When the order of dismissal came to be passedagainst various petitioners, who were dismissed for differentmisconducts, it was stated that there was a conciliation pendingbefore the Special Deputy Commissioner of Labour, Chennai. 3. The said dispute was raised through of a Strike Noticedated 7.7.2007, which was issued by the State Transport EmployeesUnion. The strike was with reference to the demand forconfirming the temporary and daily wages workers, grant of dutyon the basis of seniority on rotational basis and for the casuallabourers to be granted bonus. 4.According to the petitioners, the Union enclosed FormNo.O prescribed under Rule 59(1) of the Tamil Nadu IndustrialDispute Rules to go on strike with effect from 21.7.2007 or onany other date. The strike notice was given in terms of 21(c) ofthe Industrial Disputes Act. Pursuant to the strike notice, itwas stated that the Conciliation Officer, namely, the LabourOfficer-II, Chennai-108 had requested the Trade Union to appearbefore the said Officer. Subsequently, the matters were keptposted for several days. The respondent Corporation has alsofiled its Counter statement dated 3.12.2007 justifying the denialof work to the workmen. In the light of these developments, the https://hcservices.ecourts.gov.in/hcservices/ contention of the petitioners are that in view of Section 33(2)(a) and 33(2)(b) of the Industrial Disputes Act, the respondentManagement ought to have sought for their approval before theConciliation Officer. Inasmuch as such no post approval wasobtained, their termination is void abinitio and that they aredeemed to be in service. In that premises, they had filed thepresent Writ Petitions. In all the affidavits, similar groundswere taken. 5.According to the petitioners, once a strike notice isissued by the Union by virtue of Section 22 of the I.D.Act,Conciliation is deemed to have commenced and since no failurereport was sent by the Conciliation Officer, the Conciliation isdeemed to be pending even now. When once such a conciliation ispending there for any penalty for any misconduct not connectedwith the dispute, the employer has to seek approval under Section33(2)(b) of the I.D. Act. Therefore, the petitioner submittedthat a Constitution Bench of Supreme Court vide its judgmentreported in Jaipur Zila Sahakari Bhoomi Vikas Bank Limited vs.Ram Gopal Sharma and Others, 2002(1) L.L.N.639= 2002(2) SCC 244had interpreted the said provision and held that if an employerdo not make any application under Section 33(2)(b) of the I.D.Act, there is no necessity for the employee to file a complaintunder Section 33A or to raise any industrial dispute under theI.D.Act. If they were forced to go for such remedies, such anapproach will destroy the protection specifically and expresslygiven to the employee under S.33(2) (b) and thus the section wasintended to save the workmen from the hardship of unemployment.Therefore, the petitioners contended inasmuch as there is adispute pending before the Conciliation Officer and no postapproval was sought for in respect of the dismissal of thepetitioners, the order of dismissal is void or inoperative. Inthe very same judgment, the Supreme Court has stated that wherethere is a non-compliance of proviso of Section 33(2)(b), thenthe workman is deemed to be in service, entitled for all thebenefits as if he has not dismissed from service. The SupremeCourt has also held that infraction of Section 33(2)(b) has beenmade as a penal offence. Therefore, the said provision will notbe considered as Mandatory and not directory. 6. In paragraph No.14 of the said judgment, the SupremeCourt has held as follows:"Where an application is made underS.33(2) (b) proviso, the authority beforewhich the proceeding is pending for approvalof the action taken by the employer has toexamine whether the order of dismissal ordischarge is bona fide; whether it was by way https://hcservices.ecourts.gov.in/hcservices/ of victimization or unfair labour practice;whether the conditions contained in theproviso were complied with or not, etc. Ifthe authority refuses to grant approvalobviously it follows that the employeecontinues to be in service as if order ofdischarge or dismissal never had been passedinvoking S.33(2)(b) dismissing or dischargingan employee brings an end of relationship ofemployer and employee from the date of hisdismissal or discharge, but that orderremains incomplete and remains in choate asit is subject to approval of the authorityunder the said provision, in other words,this relationship comes to an end de jureonly when the authority grants approval. Ifapproval is not given, nothing more isrequired to be done by the employee, as itwill have to be deemed that the order ofdischarge or dismissal had never been passed.Consequence of it is that the employee isdeemed to have continued in service entitlinghim to all the benefits available. Thisbeing the position there is no need of aseparate or specific order for hisreinstatement." 7.Earlier, the Supreme Court's view was that in case ofinfraction of Section 33(2), the remedy available to the workmenis only for filing a complaint under Section 33A of the I.D. Act.When such complaints are made, the Court must go into thequestion of legality of the punishment imposed by the employer.In no case, the concerned Court can order reinstatement solely onthe ground of violation of Section 33 (2) (b) in not filing apetition for approval. Thus, the Jaipur Zilla Shahakari BhoomiVikas Bank Limited Vs. Ram Gopal Sharma case departed from theearlier line of judgments. Therefore, the workman is inadvantageous position. It is not clear as to why the petitionerhas come forward with the present writ petition challenging theorder of termination solely on the ground of infraction ofSection 32(2) (b) if they are sure about their factualfoundation.8.On notice from this Court, the Counsel for theTransport Corporation produced a letter written by the SpecialDeputy Commissioner, Chennai dated 6.5.2008 stating that when thepetitioner Thavamani, Conductor was dismissed, there was nodispute relating to any permanent workers and there is no scopeof filing any application before him. https://hcservices.ecourts.gov.in/hcservices/

9.It must also to be noted that the matter is stated tobe pending conciliation before a Conciliation Officer. There isno scope for filing any complaint under Section 33A of the I.D.Act. In such cases, when a complaint is made under Section 33 A,the Conciliation Officer shall take such complaint into accountand mediate for the settlement of such industrial dispute. It isonly in case when a dispute is pending before the adjudictionforum like the Tribunal Labour Court, those forums can go intothe validity of the complaint and pass an award as it was adispute referred for adjudication. Therefore, even if theemployer had not filed any Approval Application, the petitionercould have made a complaint to the Conciliation Officer underSection 33A of the I.D. Act, but that will not bring any reliefto the workmen as he cannot go into the merits of the complaintmade by the workmen. 10.On the contrary, in the present case except showingthere were some notices issued by the Conciliation Officer, thepetitioners were not able to produce any tangible materials andto show that there is a conciliation pending between the parties.On the contrary, the letter of the Special Deputy Commissionershows that there is no pending dispute before him. 11.From the counter affidavit dated 3.12.2007, nothingturns out to show that there is a conciliation still pending andthe respondents have infracted the provisions of Section 33(2)of the ID Act. The very fact that in Jailpur Zila case (citedsupra) the Constitution Bench had declared the law only to makethe worker to avoid raising any fresh dispute in getting his casedecided by a competent forum. It is surprising that the workmenshould come forward to file a writ petition challenging theorders of dismissal by claiming infraction of 33(2)(b) of I.D.Act. Since parties are at variance with respect to the pendencyof conciliation proceedings, the competent forum can only be theLabour Court as the Supreme Court has declared the law in favourof the workmen. 12.In such circumstances, it is open to the petitioner tofile an appropriate petition before the Labour Court claimingwages for the period in which he was not given employment. Whiledeciding such petitions, the Labour Court can always go into thequestion regarding the pendency of the conciliation proceedingsand the employer's action in violating Section 33 (2)(b) by notseeking approval from the Conciliation Officer. Such a factualfoundation is necessary before the declaration of relief infavour of the workmen. When the Supreme Court itself had statedthat the infraction of Section 33(2), the workmen are entitled toget wages as if they are in employment. Hence, no remedy will beavailable under Article 226 of the Constitution of India in case https://hcservices.ecourts.gov.in/hcservices/ of disputed questions of fact13.Mr.S.T.Varadarajulu, learned counsel appearing for thepetitioners submitted that the writ remedy is also availablesince the respondent is a wholly owned Government TransportCorporation. The Writ Petitions are maintainable before thisCourt and they cannot be non-suited on the ground of alternativeremedy. The factual aspect has to be found out in terms ofevidence (both oral and documentary) and only in suchcircumstances, such a declaration can be granted. In thepresent case, the petitioner had not made the ConciliationOfficer as a party and in the absence of the same and in theassertion made by the Transport Corporation, this Court is notinclined to entertain the writ petitions. 14.Further, whether the strike notice was validly given ornot is a question of fact which cannot be gone into in a WritPetition under Article 226 of the Constitution. The SupremeCourt in more or less similar circumstance deals with such anissue in Essorpe Mills Limited vs. Presiding Officer, LabourCourt and others, (2008) 7 Supreme Court Cases 594. Thefollowing passage found in para 22 of the judgment may beextracted below :"In the notice, it is stated that the strike willcommence on or after 24.3.1991. Obviously. Six weeks'time before the date of strike was not given. In thiscase, the date of notice is 14.3.1991 and the proposedstrike was on or after 24.3.1991. The inevitableconclusion is that the notice cannot be treated to beone under Section 22. Jaipur Zila case has noapplication if the notice given is not in accordancewith law. If no notice is given to the employer, theeffect of it is that he is not aware of the proceedings.Obviously, the conciliation proceedings must be onemeeting the requirements of law. Here, no notice interms of Section 22 of the Act was there."After holding that the strike notice was not in accordancewith law, the Supreme Court set aside the judgment of this Courtwhich had applied the Jaipur Zilla's case (cited supra) andgranted relief.15.It is open to the petitioners either to raise anindustrial dispute under Section 2A(2) of the I.D. Act on themerits of their dismissal. In such disputes, they can alwayscontend about violation of Section 33(2)(b). It is also open tothem to file a petition under Section 33(2)(c) claiming wages forthe period in which case also the Labour Court can incidentally https://hcservices.ecourts.gov.in/hcservices/ decide whether in the light of the materials, any relief can begiven to them. 16.In view of the above, the Writ Petitions are dismissed.No costs. Consequently, connected Miscellaneous Petitions areclosed. However, the findings rendered in these writ petitionsare provisional and not a final conclusions on the issues raisedby the workmen and they will not stand before the petitioner inestablishing their case before the Labour Court.Sd/Asst.Registrar/true copy/Sub Asst.RegistrartsiTo 1.The Joint Commissioner of Labour (Conciliation), Office of the Commissioner of Labour, Tenampet, Chennai-600 006.2.The Managing Director, Metropolitan Transport Corporation Limited, Anna Salai, Pallavan Illam, Chennai-600 002.3.The Joint Managing Director, Metropolitan Transport Corporation Limited, Anna Salai, Pallavan Illam, Chennai-600 002.4.The General Manager,Metropolitan Transport Corporation Ltd.,Pallavan Salai, Pallavan Illam,Chennai-2.+1cc to Mr.S.T.Varadarajulu,Advocate Sr 63440+1cc to Mr.G.Munirathinam, Advocate Sr 63553TS(CO)km/17.12. W.P.Nos.18367, 18368 of 2008, 544 to 550 of 2009, 8181 to 8196 of 2009, 16630 to 16633 of 2009