w w w . L a w y e r S e r v i c e s . i n



N. Subramanian & Another v/s The Management of Express Publications (Madurai) Limited, Chennai & Another

    W.P. Nos. 32597 & 32598 of 2004

    Decided On, 30 October 2014

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE S. RAJESWARAN

    For the Petitioners: S.T. Varatharajulu, Advocate. For the Respondents: S. Vijayaragavan, Advocate.



Judgment Text

(Prayer in W.P.No.32597/2004: This writ petition is filed for a writ of Certiorari, calling for all connected records pertaining to passing of order dated 05.05.2004 in Approval Petition No.1 of 1999 on the file of the 2nd respondent, quash the same and consequently direct the first respondent/management to reinstate the petitioner in service with all attendant benefits.

W.P.No.32597/2004: This writ petition is filed for a writ of Certiorari, calling for all connected records pertaining to passing of order dated 05.05.2004 in Approval Petition No.4 of 1999 on the file of the 2nd respondent, quash the same and consequently direct the first respondent/management to reinstate the petitioner in service with all attendant benefits.)

Common Order:

1. As the respondents in both the writ petitions are one and the same, the issue involved is more or less similar, a common order is being passed to dispose of both the writ petitions.

2. W.P.No.32597/2004: The petitioner was appointed by the first respondent Management as an attendant on 02.01.1990 and thereafter, re-designated as unskilled Baller in the packing department with effect from 1996. When he was working in that capacity, he was placed under suspension by the first respondent Management on 17.03.1997. Thereafter, the petitioner was issued with a Charge Memo on 17.03.1997, calling upon him to show cause as to why disciplinary action should not be initiated against him for the allegations levelled thereon.

3. The petitioner states that in the charge memo, it is stated that, at about 1.10 p.m. (afternoon), when he was going through the Press Gate, Thiru.Margabandhu, the Security Guard who was on duty, wanted to check him and asked the petitioner to show what was he carrying in his hands. The petitioner immediately started shouting at him, using abusing and filthy language and told the Security Guard that he had not right to check him. On hearing the loud voice, the Chief Time Keeper, Thiru R.Vijayaraghavan rushed to the spot and the petitioner was informed by the Chief Time Keeper that the Security Guard has every right to check him while was passing out of the premises. At that time, the petitioner started shouting at him and used vulgar language in Tamil and beat him on his right shoulder. Thereafter, it was further stated in the charge memo dated 17.03.1997 that if the allegations are proved, that would constitute misconduct under Clauses 16E, 16(t) and 23 of the Certified Standing Orders which are applicable to him. Hence, he was asked to submi9t his explanation.

4. The petitioner submitted his explanation denying the charges. The first respondent Management appointed one Thiru.Dhandapani as the Enquiry Officer to enquiry into the Charges. The petitioner states that the Enquiry Officer conducted the enquiry in a biased and prejudiced manner. He also recorded the evidence of witnesses and marked documents on the side of the Management. The petitioner was also examined and he also marked documents on his side. On the basis of the evidence adduced, the Enquiry Officer was about to give his findings, but, unfortunately he passed away. There upon, the first respondent Management appointed another Enquiry Officer Thiru S.Muthukrishnan to conclude the enquiry. The second Enquiry Officer without conducting a fresh enquiry, gave his findings based on the evidence recorded by his predecessor.

5. The petitioner states that, on the basis of the findings, the first respondent Management informed on 05.06.1998 that the charges were proved, for which, an explanation was called for from the petitioner. The petitioner submitted his explanation pointing out the flaws in the enquiry report.

6. However, the first respondent Management passed an order dated 15.02.1999 discharging the petitioner from services. Since a dispute was pending before the second respondent Labour Court, the first respondent Management filed an application for approval for the discharge order passed against the petitioner, after paying one month pay.

7. The petitioner filed his counter in the approval petition stating that the enquiry was conducted outside the factory premises and no fresh enquiry was conducted by the second Enquiry Officer and the findings of the Enquiry Officers are perverse. However, the Labour Court/the second respondent passed the order dated 05.05.2004, clubbing the petitioner's case along with other approval petitions against three other employees.

8. Aggrieved by the order dated 05.05.2004, granting approval by the second respondent to the first respondent Management, the above writ petition has been filed by the petitioner.

9. The first respondent Management filed a counter stating that when the petitioner behaved in such a unruly manner in the office premises, the Management had no option, but, to issue the Charge Sheet and initiated enquiry proceedings. The enquiry was conducted properly and in fact, the petitioner's request to have an advocate was also granted by the Management.

10. The petitioner cross-examined all the witnesses of the Management through his advocate and he himself let in two witnesses from his side apart from himself. The petitioner marked 23 documents on his side and fully participated in the enquiry. Thus, according to the first respondent Management, the enquiry was conducted in a fair and proper manner and the petitioner was given full opportunity to present his case. When the Enquiry Officer died before giving the award, it is not necessary to commence the enquiry afresh when the enquiry was in the stage of completion. In fact, the second Enquiry Officer also gave full opportunity to the petitioner. Hence, there is no perversity or illegality in the findings of the Enquiry Officer.

11. Instead of giving a harsh punishment of dismissal from service, a lesser punishment of discharge was imposed, which is not unreasonable in the light of the gravity of the evidences. The enquiry was conducted in Sowcarpet near High Court, where it would be easy for the petitioner's advocate to attend the enquiry and there is no rule of law stating that the enquiry must be conducted in the factory premises only. While admitting that along with the petitioner, three other employees in respect of whom also, similar petitions for approval were filed, were dealt with by a common order by the second respondent, the first respondent management states that the Labour Court has properly considered the Standing Orders, the fair enquiry as per the standing order and the conditions required by prima facie to Sub Section 2 of Section 33 of the Industrial Disputes Act. Therefore, according to the first respondent management, the Labour Court was perfectly right and correct in granting the approval.

12. It is further stated that the petitioner could agitate all his grievances in the pending I.D.No.461/2005 before the Labour Court and therefore, the Management sought for the dismissal of the writ petition.

13. An additional affidavit has been filed by the petitioner in W.P.No.32597/2004 wherein it is stated that the first respondent Management filed an approval petition before the Labour Court, since there was a dispute pending before it. The Labour Court, after considering the arguments on both sides, clubbed the petitioner's case along with three others approval petitions which were already pending and passed a common order on 05.05.2004. It is stated that the Labour Court erroneously clubbed the petitioner's case along with the other cases which were related to lock out. But, his case was totally based on different issue. The Labour Court, however, erroneously granted approval for his discharge and therefore, it is invalid in law.

14. It is further stated in the additional affidavit that the cause title of the first respondent Management before the Labour Court in approval petition shows that the Union is the respondent, when the petitioner is the respondent. This was pointed out before the Labour Court and thereafter, the first respondent filed an application to implead the workman concerned. Therefore, there is illegality and irregularity in the approval petition and on this ground also, it is to be set aside.

15. An additional counter affidavit has been filed to the additional affidavit filed by the petitioner. In the additional counter, it is stated that the petitioner already raised a proper dispute under Section 10 of the Industrial Disputes Act, challenging the very same dispute, in which all his rights and remedies could be fully ventilated. Though a common order has been passed by the Labour Court, the Labour Court looked into the necessary issues and aspects and only thereafter granted the approval.

16. The cause title error was not raised earlier and even otherwise, the petitioner is well aware of the fact that he is the party and the notice was also served on him in the approval petition. The petitioner also filed an individual vakalat before the Labour Court and also filed a counter. In such circumstances, the question of non-joinder of necessary party does not arise at all. Hence, he prayed for the dismissal of the writ petition.

17. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the first respondent management in W.P.No.32598/2004. I have also gone through the entire documents available on record including the impugned proceedings of the Labour Court..

18. After the arguments were completed, the writ petition has been posted on 28.10.2014 before me for certain clarifications. Both the counsel were permitted to argue the matter fully on all the aspects.

19. The only question that arises for consideration in W.P.No.32597/2004 is whether the Labour Court is justified in passing the common order dated 05.05.2004, by granting approval to the first respondent Management for the order of discharge passed by the Management.

20. A perusal of the common order dated 05.05.2004 in Petition Nos.1 to 4 of 1999 would show that the Labour Court's understanding was that all the petitions are filed under Section 33(2)(b) of the Industrial Disputes Act, 1947, praying to approve the action taken i.e. discharge of the service of the employees N.Subramanian, the writ petitioner herein, K.Kuberan, Tmt.Rose Barnabas and Thiru K.Krishnan (the original petitioner in W.P.No.3598/2004)

21. It is not in dispute that in the approval petition No.1/99, the management stated that the petitioner herein assaulted the Chief Time Keeper and also abused the Security Personnel in a filthy language when he was on duty. It is further stated by the Management that after conducting the enquiry in a free and fair manner, the charges framed against him were proved and instead of dismissing him from service, the Management decided to discharge him vide their order dated 15.02.1999. In view of the pending dispute in I.D.No.391/1998 before the Labour Court and as per the provisions of Section 33(2)(b) of the Industrial Disputes Act, 1947, the Management filed its application for approval of the action taken by the Management against the said employee.

22. The writ petitioner filed a counter statement opposing the grant of approval.

As already referred to by me, a common order is passed by the Labour Court, treating all the four petitions filed under Section 33(2)(b) of the Industrial Disputes Act, praying to approve the action taken by the management. Instead of dealing with each and every petition separately, the Labour Court treated, as if, all the four petitions were identical and similar. In so far as the petitioner is concerned, the charge levelled against him is that, he is guilty of riotous and disorderly behaviour during working hours in the premises, threatening or intimidating or assaulting the employees of the Company within the premises and misconduct likely to endanger the life and safety of another workman. When these are the charges against the petitioner, the charges against the other persons viz., Krishnan, Kuberan and Tmt.Rose Barnabas viz., they instigated the workers to adopt go slow tactics, as a consequence of which, papers were brought late and had to be discarded as waste. The labour court specifically stated that all the four workers threatened the top management officials and detained them, who are heart patients, for several hours continuously. They also resorted to violence by breaking the available properties and the management incurred a huge financial loss to the tune of more than Rs.1 Crore. This has been the observation of the Labour Court in its order dated 05.05.2004 with regard to all the four persons including the petitioner herein.

23. From the above, it is very clear that the Labour Court has not properly applied its mind with regard to the charges and the misconduct alleged against this writ petitioner and others. In so far as this writ petitioner is concerned, his misconduct it totally different and it is unconnected with the dispute that was pending before the Labour Court at that time.

24. The Management declared a lockout and the reasons for the lockout are that : in the bonus negotiations a section of the employees began resorting to go slow which delayed the production by about 4 hours and thus, the disruption virtually turned the newspapers into waste papers, even before it left the premises, causing irreversible loss. In view of the irrational action of the wrokmen on 22.09.1995, the management issued a notice on the morning of 23rd September 1995, stating that if the section of the workmen who resorted to go slow on the previous day, did not assure the management that they would not resort to go slow again and also assure the management that they would bring about publication in time, the management would suspend the publication of the Indian Express, Dinamani and Andhra Prabah for the day, as it could not afford the loss incurred the previous day. But, the employees did not give any such assurance, instead they were determined to continue with the same tactics. This has forced the management to declare a notice suspending the publications of the news papers which were to appear on 24th September 1995. Thereafter, a section of the workmen resorted to illegal ghearoeing of the Editors and the executives of the company including the editorial staff. In some cases, the officials were confined to the godown and they were not allowed to move. This forced the company to seek the assistance of the police, as food or snacks were not being allowed to those who have been illegally confined. Therefore, lockout was finally declared. Under these circumstances, notice has been issued stating that lockout was declared by the Management.

25. If that being so, the charges levelled against the petitioner herein is not connected with the lockout which is the issue pending before the Labour Court.

26. Under Section 33(2)(b) of the Industrial Disputes Act, 1947, it is stated that during the pendency of any such proceedings, in respect of an Industrial Dispute, the employer may, in accordance with the standing orders applicable to a workmen, or there is no such dispute, or whether there are no such standards, in accordance with the terms of the contract, whether expressed or implied, between him and the workmen, alter in regard to any matter not connected with the dispute, the conditions of services applicable to that workman immediately before the commencement of such proceeding; (or) under Section 32(2)(b), for any misconduct not connected with the dispute, discharge or punish whether by dismissal or otherwise that workman, provided that no such workman shall be dismissed or discharged unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer.

27. From the above, it is clear that Section 33(2)(b) will get attracted only when the alleged misconduct said to have been committed by the workman is not connected with the dispute.

28. In the present case, in so far as the petitioner is concerned, his case will get attracted under Section 33(2)(b), but, the others case would go under Section 33(1)(b), because the misconduct alleged against the other three persons was connected with the lockout dispute pending before the Labour Court. In such circumstances, clubbing all the four cases itself is wrong and what is still worse is the individual misconduct of the petitioner which is not connected with the dispute, was not specifically dealt with. A sweeping observation was made by stating that all the four persons in the common order are guilty of the same offence, which will go to show that the labour court has not at all applied its mind with regard to the issues and mechanically considered all the four cases together and granted approval, which is unsustainable in law. It is pertinent to mention here that under Section 33(2)(b), what is sought for in the approval petition is the approval for the action taken against them. The writ petitioner's case is definitely coming under Section 33(2)(b), but, the other persons cases could get attracted under Section 33(1)(b), for which, express permission is necessary in writing before discharging or dismissing. So, this difference between 33(1)(b) and Section 32(2)(b) has not been properly considered by the Labour Court and as such, approval granted to the petitioner is vitiated and is liable to be set aside.

29. At this point, it is relevant to refer to an unreported judgment of this Court dated 03.09.2013 in W.P.No.8886/2006 (K.Kuberan vs. The Management of Express Publication Madurai Limited and another), which was strongly relied on by the learned counsel for the petitioner, to contend that this order would apply in all force to the facts of this case and therefore, applying the law laid down in this judgment, both the writ petitions are to be dismissed.

30. I am unable to accept this submission made on behalf of the petitioners, excepting the fact that the order of discharge which was approved by the Labour Court is valid or not, the other accompanying facts and circumstances in that judgment and in the present cases are totally different. In the order dated 03.09.2013, it was clearly mentioned in Paragraph 17 by the learned Judge that the only grievance of the petitioner in that writ petition was that the enquiry was not conducted properly and therefore, the same having been done as an exparte enquiry, the Labour Court ought not to have granted the approval. This makes it very clear that in the order dated 03.09.2013, the only ground that was raised was that the enquiry was not conducted properly and only on that ground, the facts were perused by the learned Judge and after having found that the principles of natural justice have been followed by the management and in spite of giving sufficient opportunity to the petitioner to defend his case, he did not utilise the same, the learned Judge dismissed the writ petition. Therefore, the dismissal order of W.P.No.8886/2006 dated 03.09.2006 will not be held against the case of the petitioners herein.

31. In the result, W.P.No.32597/2004 is allowed as prayed for. No costs.

32. W.P.No.32598/2004 : This petition has been filed by one K.Krishnan, challenging the very same common order dated 05.05.2004, passed by the Labour Court, granting approval to the first respondent Management.

33. According to the petitioner, he was issued with a charge sheet and a show cause notice dated 15.11.1995, wherein it was alleged that on 22.09.1995, from 5.00 p.m. onwards, along with the office bearers of the Union, he instructed the workers in pasting, camera, plate making and rotary departments to adopt go slow and threatened them with dire consequences, if they did not heard to the advice of the union office bearers. Further, he actively participated in the process and advised the workers not to follow the instructions given by the Press Supervisors and that the said charge sheet and show cause notice shows that the allegations made thereon will amount to misconduct under the various provisions of the Standing Orders.

34. Against the said charge sheet dated 15.11.1995, the petitioner submitted his explanation on 01.01.1996, denying all the charges and allegations. An Enquiry Officer was appointed and in the said enquiry, the management has examined their witnesses on their side and filed documents. Based on the evidence adduced by the management and the petitioner, the Enquiry Officer submitted his report on 25.04.1997. A copy of the Enquiry Officer's report was communicated to the petitioner by letter dated 17.12.1998, informing that the management proposes to award the punishment of dismissal from service and called for his explanation. The petitioner submitted his explanation on 20.01.1999. By order dated 07.04.1999, the Management passed an order stating that they propose to discharge him from service and sent a Money Order for Rs.4,147/- being his one month's salary in lieu of notice and also sent a copy of approval petition dated 07.04.1999. Before the Labour Court, in the approval petition, a counter was submitted by the petitioner, but, the labour court by a common order dated 05.05.2004, granted approval to the management's action for discharging him from service. Aggrieved by the said common order, the present writ petition has been filed by the petitioner herein.

35. A counter affidavit has been filed by the first respondent management, stating that none of the grounds raised in respect of the writ petitioner is tenable. It is stated that enquiry was conducted in a free and fair manner, giving full opportunity to the petitioner. The petiitoner was allowed to take the assistance of an advocate. He also misbehaved with the Enquiry Officer and walked out of the enquiry, when the management's first witness was called. He refused to co-operate with the progress of the enquiry. Finally, the Enquiry Officer after having given several opportunities to him, had no other option except to proceed to record the evidence of the management's first witness and adjourned the matter to another date to enable the petitioner to cross-examine the witness. On the next hearing also, the petitioner attended the enquiry, but, refused to participate in the enquiry and therefore, he was set ex-parte.

36. Thereafter, the enquiry was conducted and the report dated 25.04.1997 was submitted. There was nothing perverse in the findings of the Enquiry Officer. The punishment of discharge is not certainly too severe when compared to the gravity of the charge, particularly when the act of go slow is viewed in the context of a news paper organisation. The labour court was perfectly correct in coming to the conclusion that the enquiry was valid and lawful and thus the approval has been given after observing all the formalities. It is always open to the petitioner to challenge the order in an appropriate proceedings under Section 10 of the Industrial Disputes Act, 1947. Hence, they prayed for the dismissal of the writ petition.

37. An additional affidavit has been filed by the petitioner wherein it was stated that at the time he was discharged from service, the lock out case was pending before the Labour Court and hence, the management filed the approval petition for seeking approval of their action. The union raised a dispute before the Joint Commissioner of Labour on 24.09.1995 against the lockout. In the remarks submitted by the management for the lockout, they falsely alleged that workers and the active members of the Union instigated the other workers to go slow, ghearoe and indulge in violence and hence, they declared a lockout. The reason for the lockout as stated by the respondent management before the Joint Commissioner of Labour and the charges issued against him, is one and the same. Hence, his discharge is connected with the earlier dispute of lockout. Therefore, the management ought to have sought for permission before passing the order under Section 33(1)(b) of the act and in that case, prior permission ought to have been obtained before passing the order removing him from service. Hence, on this ground also, the petitioner prayed for relief from this Court assailing the order of the Labour Court.

38. For this affidavit, an additional counter affidavit has been filed by the first respondent management, reiterating the earlier stand, supporting the approval order passed by the labour court. The first respondent management found fault with the petitioner for raising a new plea that the lockout and the act of indiscipline are connected and therefore, Section 33(1)(b) would apply and not Section 22(2)(b) of the Act.

39. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the first respondent management and I have also gone through the entire records made available before me. Though this matter has already been argued, it was posted again on 28.10.2014, for certain clarifications. Both the learned counsel have argued the matter in full with regard to issues concerned.

40. The only issue that arises for consideration is whether the labour court has correctly granted approval in the common order dated 05.05.2004, approving the order of removal against the writ petitioner. While dealing with W.P.No.32597/2004, I have clearly pointed out that the labour Court has committed a grave mistake in clubbing the cases of all the four persons, as if, they were one and the same. In so far as this writ petitioner is concerned, the alleged misconduct is his instructions to other works to adopt go slow tactics and his threatening of the works with dire consequences, if they do not follow the go slow tactics. To put it in a nutshell, that he has caused the go slow tactics and intimidating the others to follow the same and also advising others not to follow the supervisors or the superiors instructions. This is the exactly the reason given by the management for declaring the lockout. If that being so, as rightly contended by the learned counsel for the petitioner, his case will go under Section 33(1)(b) and not in Section 33(2)(b) of the Act. I have already pointed out and elucidated the difference between these two sections. When this writ petitioner gets attracted to Section 33(1)(b) of the Act, which is more vigorous and stringent and according to which, prior permission should be obtained before passing the order of dismissal. However, this has not been done and only after passing the order of removal, the first respondent management approached the labour court with a petition, that too, under Section 33(2)(b) of the Act, which is an incurable defect and therefore on this ground alone, the petitioner is entitled to the relief as prayed for.

41. In fact, I have already found fault with the clubbing of the four cases by the Labour Court while giving a verdict in W.P.No.32597/2004. This proves that the lower court has not applied its mind properly and mechanically considered all the four petitions for granting approval. The labour court has miserably failed to see the difference between Section 32(2)(b) and Section 32(1)(b) and therefore, I have no hesitation in setting aside the order passed by the Labour Court, granting approval to the first respondent management.

42. In 2002 (1) LLN 639 (Jaipur Zila Sahakari Boomi Vikas Bank Limited and Ram Gopal Sharma and others), a Five Bench Judges of the Hon'ble Supreme Court held as follows:

'13. The proviso to Section 33(2)(b), as can be seen from its very unambiguous and clear language, is mandatory. This apart, from the object of Section 33 and in the context of the proviso to Section 33(2)(b), it is obvious that the conditions contained in the said proviso are to be essentially complied with. Further any employer who contravenes the provisions of Section 33 invites a punishment under S.31(1) with imprisonment for a term which may extend to six months or with fine which may extend to Rs.1000/- or with both. This penal provision is again a pointer of the mandatory nature of the proviso to comply with the conditions stated therein. To put it in other way, the said conditions being mandatory, are to be satisfied if an order of discharge or dismissal passed under Section 33(2)(b) is to be operative. If an employer desires to take benefit of the said provision for passing an order of discharge or dismissal of an employee, he has also to take the burden of discharging the statutory obligation placed on him in the said proviso. Taking a contrary view that an order of discharge or dismissal passed by an employer in contravention of the mandatory conditions contained in the proviso does not render such an order inoperative or void, defeats the very purpose of the proviso and it becomes meaningless. It is well-settled rule of interpretation that no part of statute shall be construed as unnecessary or superfluous. The proviso cannot be diluted or disobeyed by an employer. He cannot disobey the mandatory provision and then say that the order of discharge or dismissal made in contravention of Section 33(2)(b) is not void or inoperative. He cannot be permitted to take advantage of his own wrong. The interpretation of statute must be such that it should advance the legislative intent and serve the purpose for which it is made rather than to frustrate it. The proviso to Section 33(2)(b) affords protection to a workman to safeguard his interest and it is a shield against victimization and unfair labour practice by the employer during the pendency of industrial dispute when the relationship between them are already strained. An employer cannot be permitted to use the provision of Section 33(2)(b) to ease out a workman without complying with the conditions contained in the said proviso for any alleged misconduct said to be unconnected with the already pending industrial dispute. The protection afforded to a workman under the said provision cannot be taken away. If it is to be held that an order of discharge or dismissal passed by the employer without complying with the requirements of the said proviso is not void or inoperative, the employer may with impunity discharge or dismiss a workman.

14. Where an application is made under Section 33(2)(b) proviso, the authority before which the proceeding is pending for approval of the action taken by the employer has to examine whether the order of dismissal or discharge is bona fide; whether it was by way of victimization or unfair labour practice; whether the conditions contained in the proviso were complied with or not, etc. If the authority refuses to grant approval obviously it follows that the employee continues to be in service as if order of discharge or dismissal never had been passed. The order of dismissal or discharge passed invoking Section 33(2)(b) dismissing or discharging an employee brings an end of relationship of employer and employee from the date of his dismissal or discharge but that order remains incomplete and remains inchoate as it is subject to approval of the authority under the said provision. In other words, this relationship comes to an end de jure only when the authority grants approval. If approval is not given, nothing more is required to be done by the employee, as it will have to be deemed that the order of discharge or dismissal had never been passed. Consequence of it is that the employee is deemed to have continued in service entitling him to all the benefits available. This being the position there is no need of a separate or specific order for his reinstatement. But on the other hand, if approval is given by the authority and if the employee is aggrieved by such an approval, he is entitled to make a complaint under Section 33A challenging the order granting approval on any of the grounds available to him. Section 33A is available only to an employee and is intended to save his time and trouble inasmuch as he can straightaway make a complaint before the very authority where the industrial dispute is already pending between the parties challenging the order of approval instead of making efforts to raise an industrial dispute, get a reference and thereafter adjudication. In this view, it is not correct to say that even though where the order of discharge or dismissal is inoperative for contravention of the mandatory conditions contained in the proviso or where the approval is refused, a workman should still make a complaint under Section 33A and that the order of dismissal or discharge becomes invalid or void only when it is set aside under Section 33A and that till such time he should suffer misery of unemployment in spite of statutory protection given to him by the proviso to Section 33(2)(b). It is not correct to say that where the order of discharge or dismissal becomes inoperative because of contravention of proviso to Section 33(2)(b), Section 33A would be meaningless and futile. The said Section has a definite purpose to serve, as already stated above, enabling an employee to make a complaint, if aggrieved by the order of the approval granted.

15. The view that when no application is made or the one made is withdrawn, there is no order of refusal of such application on merit and as such the order of dismissal or discharge does not become void or inoperative unless such an order is set aside under Section 33A, cannot be accepted. In our view, not making an application under Section 33(2)(b) seeking approval or withdrawing an application once made before any order is made thereon, is a clear case of contravention of the proviso to Section 33(2)(b). An employer who does not make an application under Section 33(2)(b) or withdraws the one made, cannot be rewarded by relieving him of the statutory obligation created on him to make such an application. If it is so done, he will be happier or more comfortable than an employer who obeys the command of law and makes an application inviting scrutiny of the authority in the matter of granting approval of the action taken by him. Adherence to and obedience of law should be obvious and necessary in a system governed by rule of law. An employer by design can avoid to make an application after dismissing or discharging an employee or file it and withdraw before any order is passed on it, on its merits, to take a position that such order is not inoperative or void till it is set aside under Section 33A notwithstanding the contravention of Section 33(2)(b) proviso, driving the employee to have recourse to one or more proceeding by making a complaint under Section 33A or to raise another industrial dispute or to make a complaint under Section 31(1). Such an approach destroys the protection specifically and expressly given to an employee under the said proviso as against possible victimization, unfair labour practice or harassment because of pendency of industrial dispute so that an employee can be saved from hardship of unemployment.'

43. In the unreport

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ed judgment dated 02.08.2006 in W.A.No.987/2006 (Tamil Nadu State Transport Corporation Limited, Villupuram vs. Joint Commissioner of Labour, Chennai and another), a Division Bench of this Court held as follows '8. Even otherwise, we have gone through the order passed by the first respondent Joint Commissioner of Labour (Conciliation) dismissing the Approval Petition on valid and relevant grounds. The finding that the appellant Corporation should have filed a petition for express permission under Section 33(1)(b) before dismissal is to be upheld. If that is the case, then the inaction on the part of the appellant Corporation in not seeking the express permission will make the dismissal order void ab initio as held by a Constitutional Bench of the Hon'ble Apex Court reported in Jaipur Sahakari Boomi Vikas Bank Limited vs. Ram Gopal Sharma (2002 (2) SCC 244).This Court had also an occasion to follow the dicta laid down in the said judgment in the matter relating to the very same appellant vide our judgment in W.A.No.379 of 2006, dated 03.04.2006.' 44. In 2006 (1) LLJ 564 (Management of Oriental Transport Limited, rep. By its Director Capt.Raman Raja I.N.(REtd.), Bangalore vs. B.T.Ramakrishna, Bangalore and others) Court of Karnataka held as follows: '15. There is a distinction between matters connected with the industrial dispute and those unconnected with it. The protection to the workmen in regard to discharge or dismissal for misconduct connected with the pending disputes has been provided under Section 33(1), but the stringency of the provision is sought to be softened by permitting the employer to take action against the workmen in accordance with the standing orders applicable to them during the pendency of the proceedings in regard to any matter unconnected with the dispute by Section 33(2). In cases falling under Section 33(1) no action can be taken by the employer, unless he has obtained previously the express permission of the appropriate authority in writing. In cases falling under sub-Section (2) the employer is required to satisfy the specified conditions but he need not necessarily obtain the previous consent in writing before he takes any action. The requirement that he must obtain approval as distinguished from the requirement that he must obtain previous permission indicates that the ban imposed by Section 33(2) is not as rigid or rigorous as that imposed by Section 33(1). 16. When once legality of the strike is referred to an Industrial Tribunal for adjudication, the management cannot take any disciplinary action against such workers who participated in the said strike. Even if they take any action without prior permission of the Industrial Tribunal, no punishment could be imposed on these workmen so as to alter the service conditions. That is the protection law has given to the workers. But if the acts complained of are unconnected with the dispute pending before the Tribunal for adjudication, no such prior permission is necessary. Even then law has taken care to protect their interest, by insisting, if action is to be taken it ought to be approved by the Industrial Tribunal.' 45. From the above judgments also, it has been made very clear that a distinction is to be made between Section 33(1)(b) and Section 33(2)(b) and both are occupying different fields, as narrated by me in the previous paragraphs. However, the learned counsel for the management tried to submit that since this was a new plea, which was not raised before, it cannot be allowed to be argued, for which, the reply is that, since it goes to the root of the matter, that too, a very legal issue which could be raised at any time and on that score, the writ petition cannot be thrown out. 46. Hence, this W.P.No.32598/2004 is also allowed as prayed for. No costs. 47. In the result, both the writ petitions are allowed. No costs.
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