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



The Management or Sri Nataraja Ceramic and Chemicals Industries Ltd., represented by its Deputy Executive Director v/s The Presiding Officer, Labour Court & Others

    W.P.(MD)Nos.2599 of 2005, 7173 of 2005, 2524 of 2005 & 2557 of 2005

    Decided On, 10 December 2011

    At, Before the Madurai Bench of Madras High Court

    By, THE HONOURABLE MR. JUSTICE K. CHANDRU

    For the Petitioner: K. Jayaraman, Advocate. For the Respondents: R1 Court, R2 - S. Muthukrishnan, Advocate.



Judgment Text

(Prayer in W.P.(MD)No.2599/2005: Writ Petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari, to call for the entire records relating to the preliminary award dated 25.11.1999 in I.D.No.36 of 1996 on the file of the first respondent herein and quash the portion of the award stating "that the dispute is an industrial dispute".

Prayer in W.P.(MD)No.7173/2005: Writ Petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari, to call for the records of the second respondent in I.D.No.36 of 1996 dated 12.01.2005 and quash the same as illegal.

Prayer in W.P.(MD)No.2524/2005: Writ Petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari, to call for the records pertaining to the impugned orders of the first respondent in I.D.No.47 of 1997, dated 25.11.1999 and 12.01.2005 and to quash the same.)

Common Order

1. The first Writ Petition being W.P.(MD)No.2599 of 2005 is filed by the Management of Sri Nataraj Ceramics and Chemicals Industries Limited, Kallakkudi, challenging a preliminary award made in I.D.No.36 of 1996, dated 25.11.1999. By the impugned preliminary award, the Labour Court set aside the enquiry held by the Management and directed them to lead fresh evidence. Since in the counter statement filed by the petitioner Management in I.D.No.36 of 1996, they have reserved their right to lead fresh evidence. Subsequent to the preliminary award holding that the enquiry held by the Management was not proper, the Management had let in evidence both oral and documentary. On their side, three witnesses were examined as M.Ws.1 to 3 and 58 documents were filed and marked as Exs.M.1 to M.58. On the side of the respondent trade union, they had examined the concerned worker by name I.Muthulingam as W.W.1 and on their side, 15 documents were filed and marked as Exs.W.1 to W.15.

2. The Labour Court, upon such evidence, came to the conclusion that the punishment imposed on the workman was valid and justified. It refused to interfere with the penalty. Notwithstanding the final award was passed in favour of the Management, for reason best known, they had filed W.P.(MD)No.2599 of 2005 challenging the preliminary award. The trade union filed a Writ Petition being W.P.(MD)No.7173 of 2005 challenging the final award passed by the Labour Court in I.D.No.36 of 1996, dated 12.01.2005, inasmuch as it had declined to grant any relief.

3. The Writ Petition filed by the Management was admitted on 05.04.2005. The Writ Petition filed by the Trade Union was admitted on 04.08.2005. In view of the inter-connectivity between the two Writ Petitions, they were heard together.

4. In the meanwhile, the workman I.Muthulingam raised an industrial dispute regarding his non-employment due to the dismissal order dated 01.04.1996. That dispute was taken on file as I.D.No.47 of 1997. The trial was conducted by the Labour Court, Trichirappalli. The Labour Court, Trichirappalli, by its preliminary award dated 25.11.1999, held that the enquiry was not fair and proper and the Management was at liberty to lead fresh evidence, since reservation was made to lead fresh evidence. It was, thereafter, evidence was recorded. The Management examined three witnesses as M.Ws.1 to 3, viz., M/s.B.Edward, P.Savariar and S.Ashok Kumar. They marked 53 documents as Exs.M.1 to M.53. On the side of the workman, he had examined himself as W.W.1. On his side, 7 documents were filed and marked as Exs.W.1 to W.7.

5. The Labour Court, on an analysis of evidence (both oral and documentary), came to the conclusion that the dismissal of the workman Muthulingam [R-2 in W.P.(MD)No.2524 of 2005] was illegal and void ab initio. The Management had contravened Section 33(2)(b) of the Industrial Disputes Act, 1947 [for short "the Act"] and it declared that he was entitled to be restored to service, as if there was no order of dismissal. In view of that finding, the Labour Court did not go into the other issues relating to proportionality of the penalty imposed.

6. That Writ Petition [W.P.(MD)No.2524 of 2005] was admitted on 30.03.2005. Pending the Writ Petition, an interim stay was granted. Subsequently, on an application being taken out by the workman, his last drawn wages under Section 17-B was directed to be paid vide order dated 21.06.2006 in W.P.M.P.(MD)No.5782 of 2005. All the matters were directed to be posted together. The reason why the Management filed Writ Petition being W.P.(MD)No.2599 of 2005 against a preliminary award in I.D.No.36 of 1996 was to sustain the maintainability of the other Writ Petition in W.P.(MD)No.2524 of 2005, in which, the workman got relief by way of a declaration that his non- employment was not justified and the domestic enquiry conducted by them was not just and proper.

7. It is seen from the records that the trade union viz., Sri Nataraj Ceramics and Chemicals National Workers Union raised an industrial dispute regarding the penalty of demotion given twice against I.Muthulingam, who was its member. The State Government, after considering a failure report, referred the industrial dispute vide G.O.(D)No.275, Labour and Employment Department, dated 22.03.1996. The said dispute was taken on file as I.D.No.36 of 1996 before the Labour Court, Trichirappalli. The Trade Union filed a claim statement. The stand of the Union was that the workman was victimized and an ex parte enquiry was conducted, which is not fair. He was also not given any show cause notice and the punishment of demotion given twice was not justified.

8. On notice from the Labour Court, the Management filed a counter statement, justifying the ex parte proceedings. The Labour Court found that two charge memos were given on 16.03.1993 and 18.12.1993 and two separate enquiries were held. Despite the workman claiming an adjournment in the enquiry, by a written request, he was not given proper opportunity. No show cause notice was given and also when he asked for a communication regarding the authorization given in favour of M.W.1, the Management claimed secrecy over the said document. Hence, he was denied reasonable opportunities of defending himself. In that view of the matter, the enquiry was set aside. Thereafter, the Management had the advantage of leading fresh evidence of examining three persons as M.Ws.1 to 3 and marked documents. The Labour Court found that on the basis of the evidence let in before it that M.W.3 deposed that as per Ex.M.15, the workman was found sleeping and someone woke him up. Hence, it was not a case of merely closing his eyes and it was also not a case of victimizing him for his trade union activities. In that view of the matter, the Labour Court refused to interfere with the penalty of demotion and rejected the reference.

9. In the Writ Petition filed by the Trade Union, they contended that the eye witnesses examined by the Management were not the employees of the Management and they were holding supervisory position. M.Ws.1 and 2 are watchmen of the company and they were not authorized to enter into the factory premises and inspect the conduct of employees during duty hours. The credit worthiness of the evidence of M.Ws.1 and 3 was not properly analysed.

10. It must be noted that when once an enquiry is set aside and evidence was allowed to be let in, the entire issue is at large before the Labour Court. It is for the Labour Court to appreciate the evidence one way or other and come to its own conclusion. This is not a case where the employer's domestic enquiry is reviewed by the Labour Court. But, on the contrary, the witnesses were examined before the Labour Court. The Labour Court had accepted the evidence of M.W.3 and also found that the penalty imposed on the workman was not liable to be interfered with.

11. It must be noted that it was not a case of dismissal so as to invite the discretion of the Labour Court to go into the question of proportionality of punishment imposed against the workman in terms of Section 11-A of the Act. But, it was only a minor penalty not covered by Section 11-A. Therefore, there was no scope for interfering with the impugned award.

12. Once it was held that the award passed in I.D.No.36 of 1996 dated 12.01.2005 was not liable to be interfered with, then the challenge to the preliminary award by the Management also must fail, because the final result was in favour of the Management and they are not entitled to challenge a preliminary award by which they cannot be said to be an aggrieved person.

13. The Supreme Court, while examining the scope of application of Order 41 Rule 22 C.P.C. in proceedings under Article 226 of the Constitution, vide judgment in Northern Rly. Co-op. Credit Society Ltd. v. Industrial Tribunal, (1967) 2 SCR 476 = AIR 1967 SC 1182, in paragraph 10, held as follows:

"10............. We cannot lose sight of the fact that normally a party in whose favour the judgment appealed from has been given will not be granted special leave to appeal from it. Considerations of justice, therefore, require that this Court should, in appropriate cases, permit a party placed in such a position to support the judgment in his favour even upon grounds which were negatived in that judgment."

14. This decision was quoted and followed in a judgment of this Court in C.Umapathy vs. Manager of Tamil Nadu Dairy Development Corporation and others reported in 1984(1) LLJ 248. Nainar Sundaram, J. in paragraph 4 held as follows:

"The ultimate order by Shops Act appellate authority has enure to the benefit of the management. Hence, there is no scope for the management to approach the High Court independently."

15. In view of the above, W.P.(MD)Nos.2599 and 7173 of 2005 are liable to be dismissed.

16. In W.P.(MD)No.2524 of 2005, the issue related to the dispute raised by the workman under Section 2A(2) of the Act. It was his claim that he had worked for more than 20 years. When he was a member of a particular union, the Management floated a rival union. It was waiting to victimize the workman and an enquiry was held against him for his alleged slackness in his work and for using abusive words while having his food in the canteen. A charge memo dated 29.08.1995 was given to him. Subsequently, an outsider was engaged as an enquiry officer. After conducting the enquiry, he was dismissed by an order dated 01.04.1996. At the relevant time, since the dispute relating to his demotion from duty was pending in I.D.No.36 of 1996 having been referred by the State Government by G.O.(D)No.275, Labour and Employment Department, dated 22.03.1996, no attempt was made by the Management to seek approval of the Labour Court, before which I.D.No.36 of 1996 was pending. When once an order of reference is made under Section 10(i) and the adjudicating authority was seized of the matter, then it is incumbent upon the Management to seek approval of their action before the appropriate Labour Court.

17. As against the dismissal, the workman raised an industrial dispute under Section 2A(2). On getting a failure report, he filed a claim statement dated-Nil (June, 1997) before the Labour Court. The said dispute was taken on file as I.D.No.47 of 1997 and a counter statement was filed by the Management on 30.08.1997. The Labour Court tried a preliminary issue relating to the domestic enquiry. By a preliminary award dated 25.11.1999, it set aside the enquiry held against the workman, but it gave an opportunity to the Management to lead fresh evidence. It was at this stage, the Management filed a Writ Petition before the Principal Bench being W.P.No.2381 of 2000. A learned Judge of this Court dismissed the Writ Petition stating that it was not proper for this Court to entertain a Writ Petition at the stage of preliminary issue and gave liberty to the Management to raise the issue, in case the final award went against it.

18. The workman filed I.A.No.174 of 2004 and I.A.No.180 of 2004 before the Labour Court for re-opening the case and to receive their additional claim statement. The Labourt Court, by its order dated 30.09.2004, allowed the applications. It has held that since the issue raised was only a legal issue, it could be raised before the Labour Court before the I.D. was closed.

19. The Labour Court, on the basis of the evidence on the first issue, held that though the second charge against the workman was proved, there was no evidence to prove the first charge. With reference to the second issue, the Labour Court held that since the industrial dispute was pending, pursuant to the reference in I.D.No.36 of 1996, it was incumbent upon the Management to seek permission from the Labour Court for imposing a penalty, as the workman was directly concerned with the dispute. The trade Union has locus standi to raise the dispute under Section 2(k) of the Act.

20. The Labour Court found that since there was a valid dispute and the Management had failed to comply with Section 33(2)(a) or 33(2)(b), the order of dismissal became void ab initio. Hence, it was unnecessary to go into the merits of the case, even assuming that one out of two charges was proved. In that view of the matter, it set aside the dismissal and declared that the dismissal was void ab initio and passed its final award dated 12.01.2005. The petitioner Management has come before this Court stating that the preliminary issue was decided erroneously and the issue relating to the infraction of Section 33 was not raised immediately after the dispute was referred and it came to be raised after 7 years after the order of reference.

21. However, it will be useful to refer to a decision of the Supreme Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma reported in (2002) 2 SCC 244 relied on by the Labour Court. In that case, the Supreme Court in paragraph 13 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 Section 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 another 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 is 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."

22. Jaipur Zila's case came up subsequent to the order of reference. The law prevailing at the relevant time was only the case in Punjab Beverages Pvt. Ltd., v. Suresh Chand and another reported in 1978 II LLJ 1 = (1978) 2 SCC 144. Jaipur Zila's case was decided by a Constitution Bench of the Supreme Court and it had declared the law and interpreted the scope of Section 33(2)(b). When the Supreme Court once declares the law in interpreting a provision of the Act, it should be understood that it has always been the law of the land and the Supreme Court in the Constitution Bench had overruled the Punjab Beverages's case. Therefore, no reliance can be placed upon Punjab Beverages's case.

23. In this context, it is necessary to refer to the relevant paragraphs of the judgment in Jaipur Zila's case [cited supra], which read as follows:

"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 the 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 the 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 33-A challenging the order granting approval on any of the grounds available to him. Section 33-A 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 33-A and that the order of dismissal or discharge becomes invalid or void only when it is set aside under Section 33-A and that till such time he should suffer misery of unemployment in spite of the 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 33-A 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 33-A, 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 33-A notwithstanding the contravention of Section 33(2)(b) proviso, driving the employee to have recourse to one or more proceedings by making a complaint under Section 33-A 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.

16. Section 31 speaks of penalty in respect of the offences stated therein. This provision is not intended to give any remedy to an aggrieved employee. It is only to punish the offender. The argument that Section 31 provides a remedy to an employee for contravention of Section 33 is unacceptable. Merely because penal provision is available or a workman has a further remedy under Section 33-A to challenge the approval granted, it cannot be said that the order of discharge or dismissal does not become inoperative or invalid unless set aside under Section 33-A. There is nothing in Sections 31, 33 and 33-A to suggest otherwise even reading them together in the context. These sections are intended to serve different purposes."(Emphasis added)

24. Subsequently, the said decision came to be quoted in another decision, wherein the question of retrospective application came to be considered

Please Login To View The Full Judgment!

in United Bank of India v. Sidhartha Chakraborty reported in 2007(7) SCC 670, wherein the Supreme Court observed as follows: "4. Stand of the appellant was that the principles of doctrine of prospective overruling would be applicable as the decision in Punjab Beverages case was holding the field "at the time the action was taken". This plea was negatived by the learned Single Judge who allowed the writ application filed by the respondent. The Division Bench held that the learned Single Judge was justified in allowing the writ petition. There was no indication in Jaipur Zila case that the doctrine of prospective overruling was applied. The learned Single Judge's order that the respondent would be entitled to reinstatement with fullback wages was upheld. 7. As has been noted in the said judgment, the proviso to Section 33(2)(b) of the Act affords protection to a workman to safeguard his interest and it is in the nature of a shield against victimisation and unfair labour practice by the employer during pendency of an industrial dispute. That being so, the judgment of the learned Single Judge as affirmed by the Division Bench does not suffer from any infirmity." Since the Supreme Court has never held that the judgment will have prospective application, it has to be understood that it has always been the law of the land. 25. The major difference between Punjab Beverages's case and Jaipur Zila's case is that in Punjab Beverages's case, for an infraction under Section 33(2)(b), a worker cannot get automatic reinstatement. The Courts were bound to go into the merits of the non-employment. But, in Jaipur Zila's case, the Larger Bench has held that the worker need not even raise a dispute with reference to his non-employment. Since the order is void ab initio, he was entitled for all consequential benefits. Further, as it is only a legal plea, it can be raised at any time, but merely because the matter was not raised in the original claim statement cannot be a ground to deny the workman. The Labour Court had correctly allowed the interim application filed by the workman for raising such a ground. 26. Under the above said circumstances, W.P.((MD)No.2524 of 2005 is also liable to be dismissed. The Management is directed to comply with the award, within a period of eight weeks from the date of receipt of a copy of this order. 27. In the result, all the three Writ Petitions will stand dismissed. Consequently, the connected miscellaneous petition is closed. However, there will be no order as to costs.
O R