Madras High Court · 2025

W.P.No.28211 of 2021petition. Appearance of Parties:For Petitioner: Mr.M.Aswin, Advocate For Respondent: Mr.R.Dillikumar, Advocate J U D G M E N T Heard. 2.The petitioner is a State-owned Transport Corporation. In the present writ petition, the petitioner challenges the order dated 29.04.2021 passed by the Labour Court, Salem, in C.P. No. 73 of 2017, whereby the Labour Court computed a sum of Rs. 16,16,127/- as dues payable to the respondent, together with interest at the rate of 6% per annum until the date of realisation. When the writ petition was taken up for admission on 04.01.2022, notice was ordered and, pending service of notice, an interim stay was also granted.3.The core issue arising from the order dated 29.04.2021 passed by the Labour Court in C.P. No. 73 of 2017 is whether there was a violation of Section 33(2)(b) of the Industrial Disputes Act, 1947, on account of the petitioner corporation having failed to obtain approval from the competent authority before whom a conciliation proceeding was allegedly pending at the time of the respondent’s dismissal, thereby rendering the order of dismissal void ab initio 2/20 https://www.mhc.tn.gov.in/judis W.P.No.28211 of 2021and entitling the respondent to claim wages and other service benefits as if the dismissal had never been effected.4.In light of the aforesaid issue, when the matter was taken up on 21.06.2024, a learned Judge of this Court passed the following order:“Learned Counsel for petitioner has circulated letter dated 16.11.2021 in Letter No.C1/29146/2021, given by Joint Commissioner of Labour who is approval authority, stating that as on 28.01.2010, there was no dispute between the union and the Management. Learned Counsel for the respondent has requested short accommodation to get instruction with regard to this letter. “5.Subsequently, when the matter was listed on 17.04.2025, this Court passed the following order:“Mr.Aswin, learned counsel appearing for the petitioner seeks time to verify the pendency of the common dispute in C1/37589/2007, dated 23.11.2007 as referred in Ex.P3 to Ex.P6 marked before the Trial Court.” 6.Pursuant to the above directions, learned counsel for the petitioner corporation produced the following documents:(a)8.10.2021 Letter from Management (b)16.11.2021 Letter from DCL, Chennai (c)2008 12 (3) Settlement 3/20 https://www.mhc.tn.gov.in/judis W.P.No.28211 of 20217.In support of the aforesaid documents, an additional affidavit dated 22.04.2025 was also filed by the petitioner. Paragraphs 6, 7, 8, and 11 of the said affidavit are reproduced below:“6. I further submit that while deciding the computation in C.P.No.73 of 2017, the Labour Court have held that there is pendency of dispute and the said finding is on the strength of Exhibit P3 to P6.7. I further state that where in the Exhibit P4 to P6 which belongs to Our region in respect other employees and in which the reference number Letter No. C1/37589/2007, dated 23.11.2007 is wrongly mentioned by our Management and it is irrelevant. Mistakenly, in a routine way this number was mentioned in those exhibits and it is incorrect number.8. I further state that due to this confusion our Management vide letter dated 08.10.2021 wrote the authority requesting to furnish the details about the pendency of any common dispute. In turn the authority under section 33(2)(b) of the ID Act replied that there is no common dispute pending on 28.10.2010, which is the dismissal date of the Respondent / workman. 11. I further submit that the above common dispute was resolved on 06.02.2008 vide settlement and after that dispute was raised by the union on 2011 only.”8.The respondent’s claim for wages following his dismissal dated 28.01.2010 was founded on the assertion that conciliation proceedings were pending before the Deputy Commissioner of Labour at the time of his 4/20 https://www.mhc.tn.gov.in/judis W.P.No.28211 of 2021dismissal. It was contended that, in the absence of approval as required under Section 33(2)(b) of the Industrial Disputes Act, the dismissal was rendered void ab initio, thereby entitling him to be treated as continuing in service for all purposes. In the claim petition filed in C.P. No. 73 of 2017, the respondent, in paragraphs 5(b) and 7, stated as follows:“5(b) The Respondent management gave a charge sheet fabricating wrong and faulty reasons, vide Memo No. HOCL3-1350-D6-TNSTC-2009 dated 06.05.2009 and terminated the petitioner by conducting an unfair and unlawful domestic enquiry against natural justice. The Opposite Party terminated the Petitioner vide its Memo No. HOCL3-1350-D6-TNSTC-2008 Dt.28.01.2010. (7) The Petitioner wandered and roamed here and there for his reemployment. On his enquiry in the office of the Commissioner of Labour, he was informed that the Opposite Party suppressed its legal obligation and disobeyed the provisions laid down under section 33(2) b of the Industrial Disputes Act, 1947, as a common dispute was pending before for negotiation. It is an obligation that dismissal orders passed by the employer have to be got approval.” 9.Upon issuance of notice by the Labour Court, the petitioner filed a counter statement dated 17.03.2018. In the said statement, the petitioner did not specifically deny the existence of pending conciliation proceedings that would necessitate seeking approval from the Conciliation Officer under Section 33(2)(b) of the Industrial Disputes Act. The only relevant averments made in 5/20 https://www.mhc.tn.gov.in/judis W.P.No.28211 of 2021the counter statement are as follows:“kDjhuu; 28/01/2010?y; gzp epWj;jk; bra;ag;gl;lij vjpu;j;J ve;j tHf;Fk; jhf;fy; bra;ahky; gzp epWj;jk; mKypy; cs;s epiyapy; nkw;go kD epiyf;fj;jf;fjy;y/ kDjhuu; mtuJ kDtpy; nkw;nfhs; fhl;oa[s;s khz;g[ik cr;rePjpkd;w jPu;g;g[ ,e;j tHf;fpw;F bghUe;jhj xd;whFk;/ kDjhuupd; gzp epWj;j cj;jut[ epYitapy; cs;s nghJ bjhHpw;jfuhW rl;lk; 33 2(b)?d; fPH; ve;j epthuzKk; nfhu ,ayhJ/”xU gzpePf;fk; bra;ag;gl;l bjhHpyhsp me;j gzpePf;fj;jpid vjpu;j;J“ gzpePf;fk; bra;ag;gl;l ehspypUe;J K:d;W tUl fhyj;jpw;Fs; bjhHpw;jhth vGg;g ntz;Lk; vd;gij bjhHpw;jfuhW rl;lk; tiuaWj;Js;sJ/ kDjhuupd; gzpepWj;jk; epYitapy; cs;s nghJ neuoahf fzf;fPl;L kD jhf;fy; bra;Js;sJ epiyf;fj;jf;fjy;y/” 10.It is pertinent to note that neither the petitioner corporation nor the contesting respondent produced any material before the Labour Court to establish that a conciliation proceeding was, in fact, pending before the Conciliation Officer with respect to collective demands of the workmen as on the date of the respondent’s dismissal, i.e., 28.01.2010. Before the Labour Court, the respondent examined himself as PW1 and marked twelve documents on his side, which were taken on record as Exhibits P1 to P12. On behalf of the petitioner corporation, one Mr. A. Pargathullah was examined as RW1, and thirteen documents were filed and marked as Exhibits R1 to R13.11.The respondent also produced four dismissal orders relating to other 6/20 https://www.mhc.tn.gov.in/judis W.P.No.28211 of 2021workmen, marked as Exhibits P3 to P6. In each of those cases, involving temporary conductors or reserve drivers, approval applications had been filed before the appropriate conciliation officers. However, the said orders—Ex.P3 dated 15.06.2011 (Deenathayalan), Ex.P4 dated 06.07.2011 (Ravikumar), Ex.P5 dated 29.07.2013 (M. Babu), and Ex.P6 dated 24.06.2014 (Govindasamy)—all pertain to periods subsequent to the respondent’s dismissal, which took place on 28.01.2010. None of these documents are contemporaneous with the respondent’s dismissal. Nevertheless, the Labour Court, in paragraphs 8, 10, and 11 of its order, held as follows:“8. The learned counsel appearing for the petitioner states that when the common dispute is pending for negotiation it is mandatory on the part of the respondent to pay one month salary and to make application for approval. But in this case management violated the mandatory requirements contemplated U/S 33 2(b) of the Industrial Dispute Act 1947 as they have not paid one month pay to the petitioner and they did not make any application for approval before the competent authority. Per contra the learned counsel appearing for the respondent would contend that as the petitioner is temporary employee it is not necessary to comply the conditions found U/S 33 2(b) of Industrial Disputes Act 1947.” “10. The above provisions reads that payment of one month wage and making application for getting approval from competent authority is sine quo non for the management before passing any dismissal order when any common dispute is pending for negotiation between the unions of employees and 7/20 https://www.mhc.tn.gov.in/judis W.P.No.28211 of 2021employer. In this case admittedly one month wage was not paid to the petitioner and management did not make application before competent authority for getting approval. At this juncture learned respondent counsel raised three contentions, one is the condition found U/S 33 2(b) would not apply for temporary conductors, second one is no common dispute was pending during the relevant time. Third one is the petitioner had not yet raised any industrial dispute as against his dismissal order before court of law and there is no pre existing right subsists for the petitioner. 11. In order to repudiate the contentions raised by the respondent counsel the petitioner have produced Ex.P3 to Ex.P6 namely dismissal order of various employees of TNSTC, wherein the management paid one month salary and made application for getting approval as the common dispute was pending between the employees and employers during the relevant time.” 12.It is evident that the Labour Court has not recorded any specific finding as to whether a conciliation proceeding was actually pending before a Conciliation Officer in relation to the collective demands of the workmen of the petitioner corporation as on the date of the respondent’s dismissal, i.e., 28.01.2010. The respondent’s attempt to rely upon dismissal orders of other similarly placed workmen, marked as Exhibits P3 to P6, is of little assistance, as those orders pertain to later periods and are not contemporaneous with the date of his dismissal. In a matter of this nature, the most crucial issue that ought 8/20 https://www.mhc.tn.gov.in/judis W.P.No.28211 of 2021to have been determined is whether any conciliation proceeding was, in fact, pending on the date of the respondent’s dismissal.13.Pursuant to the directions issued by this Court, the petitioner produced a copy of the communication received from the Special Deputy Commissioner of Labour, Chennai, bearing Letter No. C1/29146/2021 dated 16.11.2021. The contents of the said letter are as follows:bghUs;“: jkpH;ehL muR nghf;Ftuj;Jf; fHfk; (nryk;) ypl;/. ? 28/01/2010 md;W midj;J nghf;Ftuj;J fHfj;jpw;Fk; bjhlu;g[ila bghJthd Common Dispute epYitapypUe;j tptuk; nfhupaJ ? bjhlu;ghf ghu;it: jkpH;ehL muR nghf;Ftuj;Jf; fHfk; (nryk;) ypl; fojk; ehs;: 08/10/2021 ------nkw;go bghUs; bjhlu;ghf 28/01/2010 md;iwa njjpapy; bjhHpw;jhth VJk; epYitapy;iy vd;w tptuk; bjuptpf;fg;gLfpwJ/ Sd/- bjhHpyhsu; jdp ,iz Mizau;”14.The petitioner-management also placed on record a copy of the settlement dated 06.02.2008, entered into under Section 12(3) of the Industrial Disputes Act, whereby the demands of the workmen were resolved before the Special Deputy Commissioner of Labour. The terms and implications of the said settlement were elaborated in paragraphs 9, 10, and 11 as follows:9/20 https://www.mhc.tn.gov.in/judis W.P.No.28211 of 2021“9.It is humbly submitted that 10th Wage settlement had been concluded under Section 12(3) of the Industrial Disputes Act, 1947 through negotiations with the Trade Union Councils regarding wages and working conditions related thereto. Accordingly, the 9th Wage Agreement with effect from 01.09.2003 validated up to 31.08.2008. Hence the Government had modified the periodicity of five-years settlement into four years. Therefore, entered into a new wage settlement effected from 1.9.2007 to 31.08.2010 arrived on 06.02.2008.” “10.It is humbly submitted that the conclusion para in the 10th Wage settlement arrived on 06.02.2008 said that, “bjhHpw;r';f';fspd; gy;ntW nfhupf;iffs; kPJ ,g;ngr;Rthu;j;ijapy; rK:f Kot[ Vw;gl;Ls;sjhy; ,t;bthg;ge;jj;jpy; Kot[ fhzg;gl;l nfhupf;iffs; jtpu ,ju nfhupf;iffis bjhHpw;r';f';fs; jpUk;gg; bgWtjhf xg;g[f;bfhs;fpd;wd/”11. I further submit that the above common dispute was resolved on 06.02.2008 vide settlement and after that dispute was raised by the union on 2011 only.”15.It was therefore contended that, in view of the settlement dated 06.02.2008 entered into under Section 12(3) of the Industrial Disputes Act, which was to remain in force until 31.08.2010, and considering that all the recognised unions had withdrawn their residuary demands, no fresh demand could have been raised during the subsistence of the said settlement. Consequently, it was argued that there could not have been any valid conciliation proceeding pending in relation to a collective dispute on the date of 10/20 https://www.mhc.tn.gov.in/judis W.P.No.28211 of 2021the respondent’s dismissal, namely, 28.01.2010.16.In response, learned counsel for the respondent produced four orders to demonstrate that the petitioner corporations had, in other instances, sought approval from the Conciliation Officer in respect of various dismissal actions. It was contended that such conduct implied the existence of ongoing conciliation proceedings at the relevant time. It was further argued that the failure to seek similar approval in the case of the respondent rendered the order of dismissal invalid.1.11.9.2012 Letter-notice 740/14114/tnstc/2011 R Chandrappa 2.13.06.2013 Letter-notice 183/3416/D6/tnstc/2012 M.Rajkumar3.24.6.2014 Letter – notice 707/14326/D6/tnstc/2013 M.Govindsamy4.18.10.2014 Letter – notice 522/12241/D4/tnstc/2013 S.Gandhi 17.In rebuttal to this contention, the petitioner, in paragraph 12 of the additional affidavit, stated as follows:“It is humbly submitted that in Dharmapuri Region of this Corporation, unknowingly submitted their approval petitions before the Authority and by mistakenly mentioned as No.C1/37589/2007, dated. 23.11.2007 in the approval seeking petitions in respect of the listed dismissed Employees. i) Thiru. R.Chandrappa, Conductor, CR1015ii) Thiru.M.Rajkumar, Daily Paid Conductor, DC7141iii) Thiru. M.Govindsamy, Reserve Driver, RD0844iv) Thiru.S.Gandhi, Conductor, CR1576” 11/20 https://www.mhc.tn.gov.in/judis W.P.No.28211 of 202118.In this context, it is pertinent to refer to the judgment of the Hon’ble Supreme Court in Punjab Beverages Pvt. Ltd., Chandigarh v. Suresh Chand, reported in (1978) 2 SCC 144, wherein the Court observed as follows:“It cannot be said that where the application for approval is withdrawn, there is a decision by the Tribunal to refuse to lift the ban. The withdrawal of the application for approval stands on the same footing as if no application u/s 33(2)(b) has been made at all.”19.Section 20 of the Industrial Disputes Act, 1947, which governs the commencement and conclusion of proceedings, reads as follows:“20. Commencement and conclusion of proceedings.(1)A conciliation proceeding shall be deemed to have commenced on the date on which a notice of strike or lock-out under section 22 is received by the conciliation officer or on the date of the order referring the dispute to a Board, as the case may be. (2) A conciliation proceeding shall be deemed to have concluded-(a)where a settlement is arrived at, when a memorandum of the settlement is signed by the parties to the dispute;(b)where no settlement is arrived at, when the report of the conciliation officer is received by the appropriate Government or when the report of the Board is published under section 17, as the case may be; or(c)when a reference is made to a Court, [Labour Court, Tribunal or National Tribunal] [ Substituted by Act 36 of 1956, Section 15, 12/20 https://www.mhc.tn.gov.in/judis W.P.No.28211 of 2021for " or Tribunal" (w.e.f. 10.3.1957).] under section 10 during the pendency of conciliation proceedings.”20.The Supreme Court, in Management, Essorpe Mills Ltd. v. Presiding Officer, Labour Court, reported in (2008) 7 SCC 594, has categorically held that in the absence of a validly pending conciliation proceeding on the date of dismissal, the provisions of Section 33 of the Industrial Disputes Act would not be attracted. The relevant observation is as follows:“On the dates of dismissal of workmen no conciliation proceeding was pending in the eye of law. Unless a conciliation proceeding was pending at the time of dismissal of workmen, Section 33 will not be attracted and there is no question of seeking permission of the Conciliation Officer in such a case.”21.It is significant to note that the petitioner corporation, despite being adequately equipped with legal advice, did not raise any contention on this issue before the Labour Court. On the contrary, the petitioner now seeks to argue the matter extensively before this Court as though it were a court of first instance. It must be borne in mind that the relief sought is in the nature of a writ of certiorari, which can only be granted where the impugned order suffers from 13/20 https://www.mhc.tn.gov.in/judis W.P.No.28211 of 2021an error apparent on the face of the record. Such an error must be demonstrated based on the materials that were placed before the Labour Court. It is impermissible to introduce fresh materials or to advance arguments not rooted in the original record.22.The Supreme Court, in Satyanarayan Laxminarayan Hegde v. Millikarjun Bhavanappa Tirumale, reported in AIR 1960 SC 137, held as follows:“An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. As the above discussion of the rival contentions show the alleged error in the present case is far from self evident and if it can be established, it has to be established by lengthy and complicated arguments. We do not think such an error can be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ.”23.The Supreme Court, in T.C. Basappa v. T. Nagappa, reported in AIR 1954 SC 440, laid down the principles governing the issuance of a writ of certiorari in the following terms:“An error in the decision or determination itself may also be amenable to a writ of certiorari but it must be amanifest error apparent on the face of the proceedings, e.g., when it is based on 14/20 https://www.mhc.tn.gov.in/judis W.P.No.28211 of 2021clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be corrected by certiorari but not a mere wrong decision.”24.In Shivdev Singh v. State of Punjab, reported in AIR 1963 SC 1909, the Supreme Court held that there is nothing in Article 226 of the Constitution that precludes a High Court from exercising its power of review—an inherent power vested in every court of plenary jurisdiction—to prevent miscarriage of justice or to correct grave and palpable errors. However, it must be noted that the said judgment pertains to the limited scope of review and not to the appellate jurisdiction of the Court. This position was subsequently considered and clarified by the Supreme Court in Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, reported in (1974) 3 SCC 389, wherein it was observed as follows:“3 …It is true as observed by this Court in Shivdeo Singh v. State of Punjab there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and pulpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised 15/20 https://www.mhc.tn.gov.in/judis W.P.No.28211 of 2021where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate power which may enable an appellate court to correct all manner of errors committed by the subordinate court.”25.Owing to the absence of proper assistance from both sides and the Labour Court’s failure to consider the relevant legal and factual aspects while arriving at a finding of violation under Section 33(2)(b) of the Industrial Disputes Act, the impugned order passed in C.P. No. 73 of 2017 dated 29.04.2021 is found to be vitiated by error and liable to be interfered with. The Labour Court appears to have proceeded on assumptions and presumptions, rather than on a clear foundation of evidence. At the same time, this Court is not inclined to consider the fresh materials produced by either party at this stage to undertake a de novo determination of whether a valid conciliation proceeding, relating to a collective dispute involving the petitioner corporation, was pending before a Conciliation Officer as on 28.01.2010, and whether the petitioner corporation failed to obtain the requisite approval under Section 33(2)(b). Since this issue goes to the root of the respondent’s entitlement to maintain a claim petition under Section 33C(2), it is only appropriate that the 16/20 https://www.mhc.tn.gov.in/judis W.P.No.28211 of 2021matter be remitted for fresh consideration. Accordingly, the matter is remitted to the Labour Court, Salem, for fresh disposal in accordance with law, after affording due opportunity to both parties.26.In view of the foregoing discussion, the writ petition in W.P. No. 28211 of 2021 is allowed. The order dated 29.04.2021 passed by the Labour Court, Salem in C.P. No. 73 of 2017 is set aside. The claim petition in C.P. No. 73 of 2017 is remitted to the Labour Court, Salem, for fresh consideration in accordance with law. Both parties are at liberty to adduce appropriate evidence in support of their respective claims. The Labour Court shall endeavour to dispose of the matter within a period of six months from the date of receipt of a copy of this order. Consequently, the connected miscellaneous petition stands closed.27.Despite being equipped with sufficient legal resources and advice, the petitioner corporation failed to raise the relevant issues before the Labour Court, resulting in unnecessary protraction of the proceedings and compelling the respondent to wait for nearly four years to know the outcome of his claim. Accordingly, notwithstanding the fact that the order of the Labour Court is 17/20 https://www.mhc.tn.gov.in/judis W.P.No.28211 of 2021being set aside, a cost of Rs. 10,000/- is imposed on the petitioner corporation, payable to the respondent.28.Since the respondent had instituted the claim petition under Section 33C(2) of the Industrial Disputes Act on the premise of an alleged infraction of Section 33(2)(b), it is open to him, if so advised, to raise an industrial dispute under Section 2A(2) of the Act challenging his order of dismissal dated 28.01.2010. In such an event, he would have the opportunity to agitate the matter on a broader canvass before the Labour Court. 29.05.2025ayNCC : Yes / NoIndex : Yes / NoSpeaking Order / Non-speaking OrderTo The Presiding Officer, Labour Court, Salem. 18/20 https://www.mhc.tn.gov.in/judis W.P.No.28211 of 2021DR. A.D. MARIA CLETE, JayPre-Delivery Judgment made in W.P.No. 28211 of 2021 and W.M.P.No. 29809 of 2021 19/20 https://www.mhc.tn.gov.in/judis W.P.No.28211 of 2021 29.05.202520/20