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Ravindra Bhagyanarayan Thakur & Others v/s M/s. Lokmat Media Private Ltd.

    Writ Petition Nos. 7525 of 2017 to 7940 of 2017

    Decided On, 04 May 2018

    At, In the High Court of Bombay at Nagpur

    By, THE HONOURABLE MR. JUSTICE A.S. CHANDURKAR

    For the Petitioner: S.D. Thakur, Advocate. For the Respondents: M.G. Bhangde, Senior Advocate with S.N. Tapadia, Advocate.



Judgment Text

1. Since the common judgment of the Industrial Court dated 7th November, 2017 partly allowing the applications moved by the employees seeking interim relief by way of reinstatement is under challenge in all these Writ Petitions, they are being decided together by this common judgment.

2. Rule. Heard finally with consent of counsel for the parties.

3. The facts, in brief, are that the employees in question are employed with M/s. Lokmat Newspapers Pvt. Ltd. Various industrial disputes with regard to their service conditions were pending with the Industrial Court. During pendency of those proceedings, on 13th and 14th November, 2013, certain incidents took place allegedly involving certain employees which compelled the employer to issue show cause to the said employees as to why disciplinary action should not be taken against them. On the ground that the concerned employees were guilty of gross misconduct, orders of dismissal dated 21st November, 2013 came to be issued. As this dismissal, according to the employees, was during pendency of the Reference proceedings, it was necessary for the employer to have obtained necessary permission of the Industrial Tribunal where the proceedings were pending. Accordingly, the employer filed an application under Section 33 of the Industrial Disputes Act, 1947 [for short, 'the Act of 1947'] on 21st November, 2013 seeking approval to the order of dismissal. A reply was filed on behalf of the concerned employees opposing the prayer as made. Those proceedings under Section 33 of the Act of 1947 came to be decided on 16th August, 2016 and the said adjudication was the subject-matter of challenge in various Writ Petitions before this Court. This Court by order dated 10th January, 2017 had remanded the proceedings and directed the Industrial Tribunal to adjudicate the same afresh along with other pending reference proceedings. Thereafter, the employer examined about 118 witnesses to establish its case. During pendency of those proceedings, the employer moved an application seeking withdrawal of the application seeking approval to dismiss the employees. According to the employer, the provisions of Section 33 of the Act of 1947 were not applicable and hence the prayer for withdrawing the said applications came to be made. The Industrial Tribunal allowed those applications subject to payment of costs of Rs.5,000/- to each employee.

4. Thereafter, the employees filed Complaint under Section 33A of the Act of 1947 stating therein that the order of dismissal dated 21st November, 2013 having been passed without seeking necessary approval of the Industrial Tribunal, there was breach of provisions of Section 33 (2) (b) of the Act of 1947. Along with those Complaints, applications for grant of interim relief came to be filed. It was prayed that by way of interim relief, the employees be reinstated on their former posts or in the alternate the employer be directed to pay full back wages to them. These applications were opposed by the employer and by the impugned order, the learned Judge of the Industrial Tribunal directed the employer to permit the employees to join duties on their former posts or to pay seventy-five per cent wages which the said employees were receiving at the time of their dismissal.

5. This order passed by the Industrial Tribunal is under challenge by the employer on the premise that the impugned order is contrary to law and has been passed in exercise of jurisdiction not vested with the Industrial Tribunal. The concerned employees have also challenged the same order with a prayer that the employees were entitled for full wages instead of seventy-five per cent wages as granted.

6. On behalf of the employer, Shri M. G. Bhangde, learned Senior Advocate, submitted that the Industrial Court committed an error of jurisdiction by granting interim relief in proceedings under Section 33A of the Act of 1947. It was submitted that the complaints as filed had to be tried as Reference proceedings under Section 10 of the Act of 1947 and in such proceedings, there was no power with the Industrial Tribunal to grant any interim relief. He submitted that though it was true that applications seeking approval to the act of dismissal had been filed earlier, those applications had been withdrawn. Steps had been taken by the employer to revive those proceedings by making a prayer for restoration. Even if it was assumed that the action of dismissal was not preceded by any permission as contemplated by Section 33 of the Act of1947, alleged contravention of Section 33 (2) (b) of the Act of 1947 would not result in automatic reinstatement of the concerned employee. He submitted that the reliance placed on the decision in The Management Hotel Imperial, New Delhi & others Vs. Hotel Workers' Union [AIR 1959 SC 1342] by the Industrial Tribunal for granting interim relief was misplaced in view of the fact that by the law as laid down by the Hon’ble Supreme Court in its subsequent decisions, it was clear that no such relief as prayed for could have been granted in proceedings under Section 33A of the Act of1947. In this regard, he submitted that in Punjab National Bank Ltd. Vs. All India Punjab National Bank Employees' Federation & another [AIR 1960 SC 160], it was held in clear terms that in proceedings under Section 33A of the Act of 1947 even if contravention of the provisions of Section 33 is proved, the same would not result in an order of reinstatement in favour of the employee. This decision was subsequently followed in The Delhi Cloth & General Mills Co., Ltd. Vs. Shri Rameshwar Dayal & another [AIR 1961 SC 689] wherein it was held that the employee would not succeed in obtaining an order of reinstatement merely by proving contravention of Section 33 of the Act of 1947 by the employer. According to him, this law was explained and followed by the Division Bench of this Court in MRF Ltd., Goa Vs. Goa MRF Employees Union, Goa, & another [2003 (4) LLN 1182] wherein it was held that in such proceedings, the Tribunal could exercise powers which were incidental to the main proceedings and which arose from the terms of the Reference. The learned Senior Counsel then referred to the decision in Rajasthan State Road Transport Corporation & another Vs. Satya Prakash [(2013) 9 SCC 232] wherein it was held that in proceedings under Section 33A of the Act of 1947, the employee would have to prove his case on merits. It is only if the misconduct is not proved in these proceedings would the question of reinstatement arise. It was, thus, submitted that the aforesaid law having been referred to and applied by the subsequent decisions by the Hon’ble Supreme Court and also by the Division Bench of this Court, the same were binding on this Court. He referred to the judgment in Amruta Babaji Mozar Vs. Kondabai Babaji Mozar & another [1994 Mh.L.J. 1663] to urge that when the High Court considers a decision of the Supreme Court and puts its own gloss thereon, that gloss was binding on all the Courts in the State until it was outweighed by a later decision of the Hon’ble Supreme Court or of the High Court. Reference was also made to the decision in Super Cassettes Industries Ltd. Vs. Music Brodcast Pvt. Ltd. [(2012) 5 SCC 488]. Without prejudice, it was submitted by relying upon the decision in The Works Manager, Bihar State Superphosphate Factory, Sindri Vs. SRI C. P. Singh & others, etc. [(1973) 3 SCC 858] that if any amounts are directed to be paid to the employees, same should be subject to interests of the employer being protected and calling upon the employees to furnish security in that regard. It was, thus, submitted that considering the aforesaid law, there was no question of any interim reinstatement being granted in proceedings under Section 33A of the Act of 1947, especially in view of the law that breach of provisions of Section 33 would not result in automatic reinstatement of the employees. It was, thus, submitted that the impugned orders deserve to be set aside.

7. Shri S. D. Thakur, learned counsel for the employees, on the other hand, while supporting the grant of interim relief to the employees, submitted that the employer should have been directed to pay full back wages instead of the direction to pay seventy-five per cent back wages. He submitted that the Industrial Tribunal rightly placed reliance on the decision in the case of Hotel Imperial [supra] as said decision was holding the field. He submitted that the employer having sought approval of the Industrial Tribunal for dismissing the employees from service and thereafter having withdrawn such applications seeking approval, it resulted in contravention of the provisions of Section 33 (2) (b) of the Act of 1947. Such contravention has been made punitive and the consequence thereof would result in an order of reinstatement in favour of the employee. Placing reliance on the judgment of the Constitution Bench in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd., Vs. Ram Gopal Sharma & others [(2002) 2 SCC 244], it was urged that when no application seeking approval under Section 33 (2) (b) of the Act of 1947 is made or such application having been made is withdrawn, it would be a clear case of contravention of the proviso to Section 33 (2) (b) of the Act of 1947. In the face of such breach by the employer, it could not be said that the Industrial Tribunal was powerless to order reinstatement by way of interim relief. It was then submitted that the provisions of Section 10 of the Act of 1947 and requirements thereof could not be imported in proceedings under Section 33A of the Act of 1947. Such interpretation would defeat the rights of the employees and the protection intended to be conferred by Section 33 (2) (b) would become illusory. The employee would have to remain out of service for an indefinite period which would be against the intention of the Legislature. The learned counsel then submitted that the decisions sought to be relied by the learned Senior Counsel for the employer were clearly distinguishable and were not applicable to the facts of the case in hand. The view taken by the Division Bench in MRF Ltd. Goa [supra] was, in fact, referred by the Hon’ble Supreme Court to a Larger Bench as per the order passed in Goa MRF Employees Union Vs. MRF Ltd. [(2010) 15 SCC 432]. Reference was also made to the decision in Sarva Shramik Sanghatana (KV), Mumbai Vs. State of Maharashtra & others [(2008) 1 SCC 494] on the effect of withdrawing the applications seeking approval, Central Board of Dawoodi Bohra Community & another Vs. State of Maharashtra & another [ (2005) 2 SCC 673] on the effect of binding precedent as well as the decisions in Western India Automobile Association Vs. The Industrial Tribunal, Bombay & others [AIR 1949 Federal Court 111] and Pottery Mazdoor Panchayat Vs. Perfect Pottery Co. Ltd. & another [(1979) 3 SCC 762]. It was, thus, submitted that besides maintaining the direction to reinstate the employees, a direction to pay hundred per cent wages deserves to be issued.

8. I have heard the learned counsel for the parties at length and I have given due consideration to the respective submissions.

9. The factual aspects of the matters indicate that during pendency of various disputes before the Industrial Tribunal, the services of about twenty-four employees came to be dismissed on 21st November, 2013 without holding any enquiry with regard to the incidents that occurred on 13th and 14th November, 2013. The employer immediately moved applications under Section 33 (2) (b) of the Act of 1947 seeking approval to its action of dismissal. In those proceedings, the employer examined about 118 witnesses, but thereafter the employer withdrew all the applications seeking approval. It is on this premise that in absence of any approval to the action of dismissal from service which resulted in contravention of Section 33 (2) (b) of the Act of 1947, the employees filed Complaints under Section 33A read with Rule 64 of the Industrial Disputes (Bombay) Rules, 1957. In those proceedings, applications for interim relief seeking reinstatement/full wages came to be filed. The impugned orders have been passed on those applications for interim relief.

10. The question, therefore, that is required to be considered is whether in the present facts, the employees are entitled for grant of interim relief in proceedings under Section 33A of the Act of 1947. In Hotel Imperial [supra], the question considered by the Hon’ble Supreme Court was with regard to grant of wages to the employees who were suspended pending permission being sought under Section 33 of the Act of 1947 for their dismissal and whether the Tribunal could grant interim relief without making an interim award. It was held that the undisputed common law right of the master to dismiss his servant for proper cause has been subjected by provisions of Section 33 of the Act of 1947 and therefore, if the Industrial Tribunal grants permission, the suspension would come to an end and there would be no obligation to pay wages after the date of suspension. On the other hand, if the permission was refused, the suspension would be wrong and the workman would be entitled to all wages from the date of suspension. On that premise, it was held that the Tribunal could grant such interim relief. The interim relief would be granted under the powers conferred on the Tribunal under Section 10 (4) of the Act of 1947 with respect to matters incidental to the points of dispute for adjudication.

11. The next decision in point of time is the decision in Punjab National Bank Ltd. [supra] where it was held that in proceedings under Section 33A, the employee would not succeed in obtaining an order of reinstatement merely by proving contravention of Section 33 by the employer. It was further held that even if contravention of the provisions of Section 33 of the Act of 1947 is proved against the employer, it is open for the employer to justify the dismissal on merits. That would be a part of the dispute which the Tribunal has to consider as the complaint made by the employee is treated as an industrial dispute and all the relevant aspects of the said dispute fall to be considered under Section 33A of the Act of 1947. The argument that the enquiry under Section 33A is confined only to the determination of the question as to whether alleged contravention by the employer of the provisions of Section 33 has been proved or not was turned down in clear terms.

12. The decision in Hotel Imperial [supra] was considered by the Hon’ble Supreme Court in its subsequent judgment in Delhi Cloth & General Mills Company Ltd. [supra]. It was held that in a complaint under Section 33A based on dismissal against the provisions of Section 33 of the Act of 1947, the final order which the Tribunal can pass in favour of the employee would be for reinstatement. However, that final order would be passed only if the employer fails to justify the dismissal before the Tribunal either by showing that a proper domestic enquiry was held which established the misconduct or in case no domestic enquiry was held by producing evidence before the Tribunal to justify the dismissal. In para 7 of its decision, it has been held as under:-

'7. ........................................................................... ........….Therefore, when a tribunal is considering a complaint under S.33-A and it has finally to decide whether an employee should be reinstated or not, it is not open to the tribunal to order reinstatement as an interim relief, for that would be giving the workman the very relief which he could get only if on a trial of the complaint the employer failed to justify the order of dismissal. The interim relief ordered in this case was that the workman should be permitted to work : in other words he was ordered to be reinstated; in the alternative it was ordered that if the management did not take him back they should pay him his full wages. We are of opinion that such an order cannot be passed in law as an interim relief, for that would amount to giving the respondent at the outset the relief to which he would be entitled only if the employer failed in the proceedings under S. 33-A. As was pointed out in Hotel Imperial's case, A I R 1959 S C 1342 ordinarily, interim relief should not be the whole relief that the workmen would get if they succeeded finally. The order therefore of the tribunal in this case allowing reinstatement as an interim relief or in lieu thereof payment of full wages is manifestly erroneous and must therefore be set aside. ….'

13. Thus, from these decisions, it can be seen that though in Hotel Imperial [supra], it was held that interim relief where it was admissible could be granted as a matter incidental to the main question referred to the Tribunal without there being such reference in express terms, in the subsequent decision in Punjab National Bank Ltd. [supra] which was followed in Delhi Cloth & General Mills Co. [supra], it has been held in clear terms that contravention of the provisions of Section 33 of the Act of 1947 by the employer would not enable the employee to succeed in obtaining an order of reinstatement in view of the fact that even after such contravention is proved, it is open for the employer to justify impugned dismissal on merits. Incidentally, in Delhi Cloth & General Mills Co. [supra], which was authored by K. N. Wanchoo, J. who had also authored the decision in Hotel Imperial [supra], it has been observed in clear terms that grant of relief of reinstatement by way of interim relief while considering a complaint under Section 33A of the Act of 1947 would amount to giving the employee the very relief which he could get only if on a trial of the complaint, the employer failed to justify the order of dismissal. Ratio of the decision in Delhi Cloth & General Mills Co. Ltd. [supra] is explicitly clear giving no room of doubt on the question as regards entitlement to such nature of interim relief in the form of reinstatement during pendency of complaint under Section 33A of the Act of 1947.

14. In Jaipur Zilla Sahkari Bhoomivikas Bank Ltd. [supra] on which heavy reliance was placed by the learned counsel for the employees, the questions referred to the Constitution Bench were that if approval was not granted under Section 33 (2) (b) of the Act of 1947, whether the order of dismissal would become ineffective from the date it was passed or the date of non-approval of the order of dismissal. Secondly, whether failure to make an application under Section 33 (2) (b) would not render the order of dismissal inoperative. It has been held in clear terms that when no application seeking approval is made or the one made is withdrawn, it would be a clear case of contravention of the proviso to Section 33 (2) (b) of the Act of 1947. The order of discharge or dismissal does not become inoperative or invalid unless set aside under Section 33A of the Act of 1947. This decision is, therefore, an authority for the proposition that failure to make an application seeking approval or withdrawing an application made earlier would be a clear case of contravention of the proviso to Section 33 (2) (b) of the Act of 1947. It has not been held by the Constitution Bench that on the application for approval being withdrawn, the same would result in a situation that the employee is entitled to the relief of reinstatement forthwith. The ratio of this decision, therefore, cannot be applied to the case in hand so as to justify the grant of reinstatement by way of interim relief pending the complaint under Section 33A of the Act of 1947.

15. At this stage, reference is required to be made to the decision in Rajasthan State Road Transport Corporation & another [supra]. In that case, after relying upon the judgment of the Constitution Bench in Jaipur Zilla Sahkari Bhoomivikas Bank Ltd. [supra], the Tribunal held that as there was non-compliance with the provisions of Section 33 (2) (b) of the Act of 1947, the order of termination had become inoperative. This order was maintained by the High Court and the employer approached the Hon’ble Supreme Court. Referring to the judgment of the Constitution Bench, it was observed that in paragraph 14 thereof, the Constitution Bench had observed that if a workman is aggrieved by the grant of approval to the order of dismissal, the remedy is to file a complaint under Section 33A of the Act of 1947. In that complaint, the employee would succeed only if he established that the misconduct was not proved and not otherwise. The said remedy, it was observed, is independent of the penal consequences which the employer would have to face under Section 31 (1) of the Act of 1947 if so prosecuted. The decisions in Punjab National Bank Ltd. [supra] and Delhi Cloth & General Mills Co. Ltd. [supra] make the position amply clear that even after such contravention is proved, the employer could justify the impugned dismissal on merits. Referring to another judgment of the Constitution Bench in P. H. Kalyani Vs. M/s. Air France, Calcutta [AIR 1963 SC 1756], it was observed that if the employer fails to prove the misconduct in proceedings under Section 33A of the Act of 1947, the order of dismissal would become ineffective from the date when such order was passed. It was, thus, held in the facts of said case that the employer having proved the misconduct, the finding in that regard would relate back and the employer-employee relationship between the parties would be deemed to have ended from the date of the dismissal order. In my view, in the light of this decision of the Hon'ble Supreme Court which considers the decisions in Punjab National Bank Ltd., Delhi Cloth & General Mills Co. Ltd., P. H. Kalyani and Jaipur Zilla Sahakari Bhoomivikas Bank Ltd. [supra] , it is crystal clear that even if it is prima facie found that there is a contravention of provisions of Section 33 (2) (b) of the Act of 1947 on account of withdrawal of applications seeking approval to the orders of dismissal, it is still open for the employer to prove the misconduct of the employees in the complaint filed under Section 33A of the Act of 1947 complaining of such contravention. If the final relief of reinstatement depends and hinges upon misconduct being proved by the employer and the relief of reinstatement also being dependent on that aspect, grant of interim relief by way of reinstatement would be impermissible as held in the aforesaid decisions.

16. The learned Senior Counsel for the employer sought to draw support from the judgment of the Division Bench in MRF Ltd., Goa [supra] which effort was sought to be countered by the learned counsel for the employees by contending that the issues decided by the Division Bench of this Court had been referred to a larger Bench of the Hon'ble Supreme Court in Goa MRF Employees' Union [supra]. It is, however, to be noted that the larger Bench in Goa MRF Employees' Union Vs. MRF Ltd. [(2014) 14 SCC 483] did not in the facts of that case find it necessary to decide the question referred to it. In view thereof, the judgment of the Division Bench in

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MRF Ltd. Goa [supra] continues to hold the field. However, the legal position being clear in view of the decision in Rajasthan State Road Transport Corporation & another [supra], it is not necessary for this Court to further consider as to whether grant of interim relief would be incidental to the proceedings under Section 33A of the Act of 1947. For that reason, it is not found necessary to refer to the applicability of the other decisions relied upon by the learned counsel for the parties. 17. In the impugned order, the learned Member of the Industrial Tribunal recorded a finding that the orders of dismissal were prima facie in violation of the provisions of Section 33 (2) (b) of the Act of 1947 and further observed that the employer would attempt to justify its action of dismissal by adducing evidence. It further observed that hardship would be caused to the employees if they are kept out of employment. On this premise, it proceeded to grant interim relief by passing the impugned order. In the light of the legal position that follows from the decisions of the Hon'ble Supreme Court referred to herein above, I do not find that the employees are entitled to reinstatement by way of interim relief in the present proceedings. If in the complaints filed under Section 33A of the Act of 1947, the employer fails to prove the misconduct leading to the orders of dismissal, it goes without saying that the relationship of employer and employee would continue as the order of dismissal would be set aside. The employees at that stage would be entitled for final relief. The law, however, is against the grant of reinstatement by way of interim relief in proceedings under Section 33A of the Act of 1947. 18. In that view of the matter, the impugned order passed by the learned Member of the Industrial Tribunal dated 7th November, 2017 cannot be sustained. That order is accordingly set aside. Writ Petition Nos.7906 of 2017 and 7918 of 2017 to 7940 of 2017 filed by the employer are allowed. The applications for interim relief filed by the employees stand dismissed. Writ Petition Nos. 7525 of 2017 to 7548 of 2017 filed by the employees are consequently dismissed. In the facts of the case, the complaints filed under Section 33A of the Act of 1947 are expedited. The said complaints be decided in accordance with law without being influenced by any observations made in this judgment preferably within a period of four months from today. 19. Rule in all the Writ Petitions is disposed of in aforesaid terms with there being no order as to costs.
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