The Management ofW.S.Industries (India) Ltd.,Porur, Chennai-600 116 v. K. Ramakrishnan

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 06-08-2009CORAM:THE HONOURABLE MRS. JUSTICE PRABHA SRIDEVANANDTHE HONOURABLE MR. JUSTICE C.T. SELVAMW.A.No.3944 of 2004AndW.A.M.P.Nos.189, 190, 192 to 197 of 2007The Management ofW.S.Industries (India) Ltd.,Porur, Chennai-600 116... Appellant/II RespondentVs. 1.K. Ramakrishnan2.K. Natarajan3.G. Subramanian4.R. Janakiraman5.M. Seemathan6.The Presiding OfficerIndustrial TribunalChennai...Respondents/Petitioners/IRespondentLetters Patent against the order dated 01-10-2004 passed inW.P.No.15585 of 2004. Which is filed under Article 226 ofConstitution of India to issue Certiorarified Mandamus aftercalling for the records relating to the order dated 7.4.04 passedby the Ist respondent in Miscellaneous App.No.38/02 in complaintNos.14 to 17 and 19/90 iln I.D.No.84/89 quash the same andconsequently direct the 2nd respondent to reinstate thepetitioners with continuity of service, backwages and otherattendant benefits and award costs. For appellant :: Mr. N. Manoharan For respondents :: Mrs. R. Vaigai, SC for Mr. V. Ajay Khose for RR1 to 3JUDGMENT(Judgment of the Court was delivered by Prabha Sridevan,J.)The appellant is the Management. The appellant dismissedits employees, the respondents 1 to 5, when proceedings werepending before the Industrial Tribunal. The question is whether onthe facts and in law, the appellant should have obtained approvalunder Section 33(2)(b) of the Industrial Disputes Act. 2.On 03-10-1988, the W.S. Insulators National Workers’ Unionof which the respondents are members submitted a charter of https://hcservices.ecourts.gov.in/hcservices/ demands for revision of wages. On 09-08-1989, on the jointapplication made by this Union and the Management, the Governmentreferred the matter for adjudication, which was taken on file asI.D.No.84 of 1989. According to the respondents, their Union isthe only registered Union consisting of 1078 members out of the1157 workmen in total. When I.D.No.84 of 1989 was pending, theManagement entered into a settlement under Section 18(1) of theIndustrial Disputes Act on 11-10-1990 with another Union namedW.S. Industries Employees and Staff Progressive Union. On 15-11-1990, the appellant dismissed RR1 to 5 from service for misconductnot connected to the dispute in I.D.No.84 of 1989. They wereneither given one month notice nor did the Management seekapproval under Section 33(2)(b) of the Industrial Disputes Act.Therefore, they filed Complaint Nos.14 to 19 of 1990 under Section33(A) of the Industrial Disputes Act. One of the complainants wastaken back pending the complaint. 3.On 28-05-1992, a common award was passed in complaint Nos.14 to 17 holding that the complaints were maintainable. TheTribunal set aside the enquiries since they were not fair andproper and ordered reinstatement of the respondents withcontinuity of service and backwages. On 28-10-1992, theManagement filed I.A.Nos.7 to 12 of 1992 for review of the award,on the ground that were not given opportunity to let in evidence.On 28-05-1993, the Management filed an application for passing anaward in terms of the settlement dated 11-10-1990. The Tribunalfound that the settlement was fair and passed an award in terms ofthe settlement on the same day. On 03-08-1993, I.A.Nos.7 to 12 of1992 were allowed and the parties were allowed to let in evidence.On 06-08-1994, a common award was passed after review holding thatthe enquiry was fair and proper and declining to grant any reliefto the workmen. 4.On 04-05-1995, W.P.No.3579 of 1995 was filed challengingthe award dated 06-08-1994 and W.P.No.3580 of 1995 was filedchallenging the order dated 03-08-1993 allowing the interlocutoryapplications for review. On 13-07-2001, by consent of both thecounsel the matter was remitted to the enquiry officer andsubsequently on 30-11-2001, in view of the request made by boththe counsel the earlier order was modified and the matter wasremitted back to the Industrial Tribunal instead of the enquiryofficer. The respondents then filed M.A.No.38 of 2002 to pass anaward without going into the merits, in view of the judgmentreported in 2002 (2) SCC 244(Jaipur Zila Sahakari Bhoomi VikasBank Ltd., Vs. Ram Gopal Sharma) since the appellant had notobtained approval under Section 33(2)(b). This was resisted bythe Management on the ground that the judgment was prospective andsince it was delivered only on 17-01-2002 it cannot be applied tothis case. The miscellaneous application was dismissed by theTribunal. 5.Against that, the respondents filed W.P.No.15585 of 2004.The learned Single Judge after considering the facts of the casecame to the conclusion that I.D.No.84 of 1989 came to an end onlyin the year 1993 and thus at the relevant point of time, despite https://hcservices.ecourts.gov.in/hcservices/ the settlement the proceedings were pending and following 2002 (2)SCC 244(cited supra) and 2003(4) LLN 117(C. Ramanujam Vs.Presiding Officer, Industrial Tribunal and another) allowed thewrit petition. Against that the present writ appeal has beenfiled.6.In the writ appeal, a new point is taken by theManagement and that is there was no dispute existing on 15-11-1990, since there was a settlement prior to that. So the approvalunder Section 33(2)(b) was not required. According to both thelearned counsel the words used in Section 33(2)(b) during thependency of any such proceedings in respect of an industrialdispute and therefore, “so not only must a proceedings be pendingbut there should be an existing industrial dispute. When thedispute had come to an end with the settlement even Jaipur Zilacase will not help them. Section 33(2)(b) reads as follows:33.Conditions of service, etc., to remainunchanged under certain circumstances during pendency ofproceedings.—(1) ***(2) During the pendency of any such proceeding inrespect of an industrial dispute, the employer may, inaccordance with the standing order applicable to aworkman concerned in such dispute or, where there are nosuch standing orders, in accordance with the terms ofthe contract, whether express or implied, between himand the workman. -- (a)...(b) for any misconduct not connected with thedispute, discharge or punish, whether by dismissal orotherwise, that workman:Provided that no such workman shall be dischargedor dismissed, unless he has been paid wages for onemonth and an application has been made by the employerto the authority before which the proceeding is pendingfor approval of the action taken by the employer." 7.Section 20 which deals with commencement andconclusion of proceedings:A Conciliation proceeding shall be deemed to havecommenced on the date on which a notice of strikeor lockout under section 22 is received by theconciliation officer or on the date of the orderreferring the dispute to a Board, as the case maybe,A conciliation proceeding shall be deemed to haveconcluded –a.where a settlement is arrived at, when a https://hcservices.ecourts.gov.in/hcservices/ memorandum of the settlement is signed bythe parties to the dispute;b.where no settlement is arrived at, when thereport of the conciliation officer isreceived by the appropriate Government orwhen the report of the Board is publishedunder section 17, as the case may be; or c.when a reference is made to a court,(Substituted by Act 36 of 1956, s15, for ‘ortribunal’ (wef 10 March 1957)) [LabourCourt, Tribunal or National Tribunal] undersection 10 during the pendency ofconciliation proceedings.(3) Proceedings (Substituted by Act 36 of 1956,s15, for ‘before a tribunal’) before anarbitrator under Section 10A before a LabourCourt, Tribunal or National Tribunal] shall bedeemed to have commenced on the date of the(Substituted by Act 36 of 1956, s15, for‘reference of a dispute for adjudication’ (wef 10March 1957) [reference of the dispute forarbitration or adjudication, as the case may be]and such proceedings shall be deemed to haveconcluded (Substituted by Act 18 of 1952 s4, forcertain words)[on the date on which the awardbecomes enforceable under section 17A].8.Section 17(A) provides that, “(1) An award (including an arbitration award)shall become enforceable on the expiry of thirty daysfrom the date of its publication under Section 17:Provided that –if the appropriate Government is of opinion, in any casewhere the award has been given by a Labour Court orTribunal in relation to an industrial dispute to whichit is a party; orif the Central Government is of opinion, in any case wherethe award has been given by a National Tribunal,that it will be inexpedient on public grounds affectingnational economy or social justice to give effect to thewhole or any part of the award, the appropriateGovernment, or as the case may be, the CentralGovernment may, by notification in the Official Gazette,declare that the award shall not become enforceable onthe expiry of the said period of thirty days.(2) Where any declaration has been made in relation toan award under the proviso to sub-section (1), the https://hcservices.ecourts.gov.in/hcservices/ appropriate Government or the Central Government may,within ninety days from the date of publication of theaward under section 17, make an order rejecting ormodifying the award, and shall, on the first availableopportunity, lay the award together with a copy of theorder before the Legislature of the State, if the orderhas been made by a State Government, or beforeParliament, if the order has been made by the Centralgovernment.(3) Where any award as rejected or modified by an ordermade under sub-section (2) is laid before theLegislature of a State or before Parliament, such awardshall become enforceable on the expiry of fifteen daysfrom the date on which it is so laid; and where no orderunder sub-section (2) is made in pursuance ofdeclaration under the proviso to sub-section (1), theaward shall become unforceable on the expiry of theperiod of ninety days referred to in sub-section(2).(4) Subject to the provisions of sub-sections(1) and (3)regarding the enforceability of an award, the awardshall come into operation with effect from such date asmay be specified therein, but where no date is sospecified , it shall come into operation on the datewhen the award becomes enforceable under sub-section(1)or sub-section (3), as the case may be.”9.The Management relies on AIR 1954 SC 160 (SirsilkLtd. V. Government of Andhra Pradesh) where after the proceedingsbefore the Tribunal had come to an end and the Tribunal had sentits award to the Government there was a settlement between theparties to the dispute and the Supreme Court held that there is infact no dispute left to be resolved by the publication of theaward. They referred to 1965 (2) LLJ 110 (Amalgamated CoffeeEstates Ltd., Vs. Their workmen) where the Industrial Tribunalcame to the conclusion that the settlement was a fair settlementhaving regard to the basic facts of the dispute between theparties though some of the Unions representing some of theemployees were not parties to such settlement and such employeeshad accepted the payments knowingly and voluntarily. In 1970 IILLJ 195(M/s. Garment Cleaning Works Vs. D.M. Aney), the BombayHigh Court held that in a case where two Unions were representedby the petitioner firm raising similar disputes and another Uniongot itself impleaded and pending adjudication the first two Unionand the Management entered into a settlement and the Tribunalpassed an award in terms of the settlement and the third Unionterminated the award and obtained a reference to dearnessallowance with regard to retrospective effect. The Bombay HighCourt held that even though the dispute is referred to theIndustrial Tribunal, the Tribunal cannot refuse to accept thesettlement made by the parties and since the purpose of industriallaw is to ensure fair deal and keep industrial peace when thedispute is before the Tribunal, one Union cannot displace anotherby extravagant promises creating disputes. https://hcservices.ecourts.gov.in/hcservices/

10.In 1964 II LLJ 144(Digwadih Colliery Vs. RamjiSingh) it was held that unless the nature of the pending disputewas ascertained and considered, it could not be said that theworkman was concerned with the pending dispute and the SupremeCourt reversed the award of reinstatement granted by the Tribunal.11.In 1976 LIC 1260(Khagendra Prasad Patra Vs. D.T.M.,S.T.S.Koraput) the Orissa High Court held that the mere fact thatthe petitioner workman was a member of the Union which had takenup the pending dispute of another workman will not make him aworkman concerned.12.In 1999 AIR SCW 4626(National EngineeringIndustries Ltd., Vs. State of Rajasthan), the Supreme Court heldthat when there was a conciliation settlement and all theemployees of the appellant and the Members of the Workers’ Unionhad accepted the benefits, a charter of demands was raised by theworkers’ Union the Conciliation Officer submitted a failurereport. The State Government did not make any order forreference. A writ petition was filed directing the StateGovernment to decide the question whether or not to make thereference. In the mean time, the Government had made thereference. The ground taken was that when there is no disputepending in as much as there was a tripartite settlement and theadvantage of the benefits had also been taken by the workers, theState Government had no jurisdiction to make the reference. TheSupreme Court allowed the appeal since it is the existence of theindustrial dispute which would clothe the appropriate Governmentwith power to make reference and the Industrial Tribunal toadjudicate it. We do not know how this applies to the presentcase. 13.The main objection of the appellant is that sinceno dispute existed on the day when the respondents were dismissed,the question of approval under Section 33(2)(b) would not arise.This is the only point that was argued before us and this was notan issue that was raised earlier. For the first time, thisquestion is raised for our answer and it is the only submissionmade by the learned counsel for the appellant. The language ofSectIon 18(1) shows that the 18(1) settlement is binding on theparties to the agreement. In this case, the Management enteredinto an agreement with the workman represented by W.S. IndustriesEmployees and Staff Progressive Union. The settlement itselfshows that the charter of demands was made through theW.S.Industries National Workers' Union and that since there was nosettlement in the course of conciliation a joint reference hadbeen made and the same is pending adjudication and that a largesection of the workman approached the Management thorugh the W.S.Industries Employees and Staff Progressive Union and assured theManagement that their Union are ready to co-operate and it isafter communication that the settlement was arrived at. They hadalso agreed to withdraw their claims from adjudication and agreedto get impleaded before the Tribunal for passing an award asstated earlier. The matter was taken up on 28-05-1993. Thefinding in the award is that W.S.Industries National Workers' https://hcservices.ecourts.gov.in/hcservices/ Union the respondent’s Union who made the charter of demands. TheIndustrial Tribunal recorded that permanent workman numberingabout 1068 had already accepted the statement. Thereafter, theIndustrial Tribunal found that the settlement was fair and passedan award in terms of the settlement. With that the proceedingconcluded.14.The Section refers to the words "any proceedings inrespect of a industrial dispute." The words used are not “duringthe subsistence of a dispute or before the industrial dispute cameto an end”. The Act declares when the proceedings commence andwhen they conclude in Section 20.15.There is no room for any doubt or ambiguity in thelanguage of Section 20. It clearly says when the proceedingscommence and when they conclude. The Management must obtainapproval under Section 33(2)(b), the following conditions arenecessary:The proceedings should be pendingIt should be in reference to an industrial disputeIt should be with regard to the concerned workman and the concerned workman must have been discharged or dismissedfor any mis-conduct not connected with the dispute.16.In this case, the charter of demands was given bythe Union of which the respondents were members and the referencewas made only on that basis. Therefore, the respondents aredefinitely “concerned workman”. There is also no dispute that themisconduct for which they were dismissed was unconnected with thedispute in I.D.No.84 of 1989. The words “in respect of anindustrial dispute” means that the proceedings that are pendingshould be in respect of an industrial dispute. Even if it hadbeen settled, the proceedings would still be in respect of anindustrial proceedings and they would be pending until they areconcluded as per Sectin 20. And, until the proceedings concludethe embargo of Section 33(2)(b) will apply. This is clear fromthe Act. May be with the settlement, the dispute as such had cometo an end. We are not sure of even that in this case because thesettlement was entered into not by the Union which raised by theCharter of demands but what was alleged to be a captive union. Bethat as it may, thereafter 1028 workers decided to fall in linewith the terms agreed under the 18(1) settlement. Therefore,until the award was passed in terms of the settlement theproceedings cannot be said to have come to an end. The ending ofthe dispute is not the relevant criterion but the conclusion ofthe proceedings is the relevant criterion. 17.In all the decisions referred to by the learnedcounsel for the appellant, the Courts have held that when a fairand proper settlement had been arrived at then the dispute must bedeemed to have come to an end and extravagant claims cannot bemade by a rival union to scuttle the attempts to achieveindustrial peace. In none of the above judgments have the Courtsheld that on the date of the 18(1) Settlement the proceedingsconclude. The proceedings conclude only in terms of Section 20. https://hcservices.ecourts.gov.in/hcservices/ Therefore, the Management was bound to have applied for approvalunder Section 33(2)(b) before the Tribunal where I.D.No.84 of 1989was pending. In fact they had made an application on 28-05-1993to pass an award in terms of the settlement. The IndustrialTribunal at first held in the Complaints that the enquiry wasunfair and therefore, the orders of dismissal were void. In viewof the law laid down in Punjab Beverages (P) Ltd. Vs. Suresh Chand(1978 (2) SCC 144), even if approval had not been obtained thatitself would not make the order of discharge or dismissalinoperative and still the workman must have the adjudication onthe order of discharge. This was subsequently overruled byJaipur Zila case. In any event on that date there had to be adecision on the correctness of the order of discharge or dismissaland that is how the original orders were passed on the complaints.Thereafter, a review was filed and on review the IndustrialTribunal found that the enquiry was fair and the orders ofdismissal were valid. Aggrieved by this order of review, theworkmen came before this Court and by consent, they were sent backto the Tribunal by this Court. 18.Then the workmen filed the memo that in view of thedecision of the Constitution Bench the orders of dismissal werevoid or inoperative and proceedings cannot go on. According tothe Tribunal, because this Court had directed that evidence shouldbe taken, the memo cannot be accepted. This is clearly incorrectif we read the judgment in Jaipur Zila case, wherein the SupremeCourt held that,“14. Where an application is made under Section 33(2)(b) proviso, the authority before which theproceeding is pending for approval of the action takenby the employer has to examine whether the order ofdismissal or discharge is bona fide; whether it was byway of victimization or unfair labour practice; whetherthe conditions contained in the proviso were compliedwith or not, etc. If the authority refuses to grantapproval obviously it follows that the employeecontinues to be in service as if order of discharge ordismissal never had been passed. The order of dismissalor discharge passed invoking Section 33(2)(b) dismissingor discharging an employee brings an end of relationshipof employer and employee from the date of his dismissalor discharge but that order remains incomplete andremains inchoate as it is subject to approval of theauthority under the said provision. In other words, thisrelationship comes to an end de jure only when theauthority grants approval. If approval is not given,nothing more is required to be done by the employee, asit will have to be deemed that the order of discharge ordismissal had never been passed. Consequence of it isthat the employee is deemed to have continued in serviceentitling him to all the benefits available. This beingthe position there is no need of a separate or specificorder for his reinstatement. But on the other hand, if https://hcservices.ecourts.gov.in/hcservices/ approval is given by the authority and if the employeeis aggrieved by such an approval, he is entitled to makea complaint under Section 33A challenging the ordergranting approval on any of the grounds available tohim. Section 33A is available only to an employee and isintended to save his time and trouble inasmuch as he canstraightaway make a complaint before the very authoritywhere the industrial dispute is already pending betweenthe parties challenging the order of approval instead ofmaking efforts to raise an industrial dispute, get areference and thereafter adjudication. In this view, itis not correct to say that even though where the orderof discharge or dismissal is inoperative forcontravention of the mandatory conditions contained inthe proviso or where the approval is refused, a workmanshould still make a complaint under Section 33A and thatthe order of dismissal or discharge becomes invalid orvoid only when it is set aside under Section 33A andthat till such time he should suffer misery ofunemployment in spite of statutory protection given tohim by the proviso to Section 33(2)(b). It is notcorrect to say that where the order of discharge ordismissal becomes inoperative because of contraventionof proviso to Section 33(2)(b), Section 33A would bemeaningless and futile. The said Section has a definitepurpose to serve, as already stated above, enabling anemployee to make a complaint, if aggrieved by the orderof the approval granted.“19.The pronouncement of the Supreme Court regardingthe construction of Section 33(2)(b) resulted in a declaration oflaw that this is how law stood right from the beginning and thatthe law was never otherwise. This is clear from the variousdecisions of the Supreme Court and we will cite only 2003(4)SCC147 (Sarwan Kumar Vs. Madan Lal Aggarwal) as an example where theSupreme Court held that when Section 50 of the Delhi Rent ControlAct barred the jurisdiction of a Civil Court to entertain any suitor proceedings relating to eviction of a tenant from the premisescovered by the Act, the fact that a decree had been passed and theproceedings now were at the execution stage will not cure thenullity. The Supreme Court held that,“When the court decides that the interpretationgiven to a particular provision earlier was not legal,it declares the law as it stood right from the beginningas per its decision. In Gian Devi Anand's case (1980(17) DLT 197) the interpretation given by the Delhi HighCourt that commercial tenancies were not heritable wasoverruled being erroneous. Interpretation given by theDelhi High Court was not legal. The interpretation givenby this Court declaring that the commercial tenanciesheritable would be the law as it stood from thebeginning as per the interpretation put by this Court.It would be deemed that the law was never otherwise. https://hcservices.ecourts.gov.in/hcservices/ Jurisdiction of the civil court has not been taken awayby the interpretation given by this Court. This Courtdeclared that the civil court had no jurisdiction topass such a decree. It was not a question of taking awaythe jurisdiction it was the declaration of law by thisCourt to that effect. The civil court assumed thejurisdiction on the basis of the interpretation given bythe High Court in Gian Devi Anand's case, which was setaside by this Court……A decree passed by a Court having no jurisdictionover the subject matter would be a nullity and thejudgment-debtor can object to the execution of such adecree being a nullity and non est. Its invalidity canbe set up whenever it is sought to be enforced includingthe stage of execution of the decree or any othercollateral proceedings. We are conscious of the factthat it would work a great hardship on the respondent-decree holder who would not be able to reap the benefitof the decree passed in his favour having won at all thestages but the vagaries of law cannot be helped. “Therefore, if we allow the Industrial Tribunal to record evidenceon the ground that the parties had consented to go before theIndustrial Tribunal, the Industrial Tribunal will be decidingwhether order of dismissal is legal or not when the Supreme Courthad declared that such orders of dismissal without the approvalunder Section 33(2)(b) are void and inoperative. This will betotally against the decision in Jaipur Zila case. 20.The learned Single Judge was quite right inallowing the writ petition. We confirm the same and dismiss thewrit appeal. No costs. The connected miscellaneous petitions areclosed. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarglpToThe Presiding OfficerIndustrial TribunalChennai-141 cc To Mr.V. Ajay Khose, Advocate, SR.368012 cc To Mr.N. Manoharan, Advocate, SR.33377W.A.No.3944 of 2004andW.A.M.P.Nos.189, 190, 192 to 197 of 2007ka(co)pmk.19.8.2009.