Madras High Court
The Management vs G.K.Pachiappan on 7 February, 2012
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 07.02.2012 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.28854 and 30409 of 2007 and M.P.No.1 of 2007 The Management Gobichettipalayam Agri Producers Co-operative Marketing Society Ltd Gobichettipalayam ...Petitioner in WP.28854/2007 K.A.Arangarasu ...Petitioner in WP.30409/2007 vs 1.G.K.Pachiappan 2.E.Arangaraju 3.Presiding Officer Labour Court, Salem ..Respondents in WP.28854/2007 4.The Presiding Officer The Labour Court Salem 5.The Management Gobichettipalayam Agricultural Producers Cooeperative Marketing Society Ltd 36, Modachur Road Gobichettipalayam-638 476 Erode District 6.G.K.Pachiappan ..Respondents in W.P.30409/2007 Prayer in W.P.28854/2007:-Writ Petition filed under Article 226 of Constitution of India praying to issue a Writ of Certiorari calling for the records of the award of the Labour Court, Salem dated 05.02.2007 made in I.D.No.314 of 2001 and quash the same. Prayer in W.P.30409/2007:-Writ Petition filed under Article 226 of Constitution of India praying to issue a Writ of Certiorari calling for the records relating to the Award dated 05.02.2007 made in I.D.No.314 of 2001 passed by the Labour Court, Salem and quash the same. For petitioner in W.P.28854/2007 : Mr.M.Liagat Ali For petitioner in W.P.30409/2007 : Mr.N.Manokaran For respondents in W.P.28854/2007:Mr.N.Manokaran for R2 Mr.R.Sankarasubbu for R1 For respondents in W.P.30409/2007:Mr.M.Liagat Ali for R2 :Mr.R.Sankarasubbu for R3 C O M M O N O R D E R
These two writ petitions are filed by the Management, Gobichettipalayam Agri producers Cooperative Marketing Society Ltd represented by its Special Officer as well as by one K.A.Arangarasu, former President of the said Society challenging the award in I.D.No.314 of 2001 dated 05.02.2007 passed by the Labour Court, Salem.
2. By the impugned award, the Labour Court directed the reinstatement of the contesting respondent G.K.Pachiappan with service continuity, backwages and other attendant benefits in the post of Watchman together with compensation of Rs.5,000/- to be paid by the Management. The Labour Court also in the impugned award gave liberty to recover the amount from the past President K.A.Arangarasu after taking appropriate proceedings in terms of the Act. It also ordered costs of Rs.300/- to be paid.
3. W.P.No.28854/2007 filed by the Society was admitted on 03.09.2007. Pending the writ petition, an interim stay of the award was granted. Subsequently, the Ex-President of the Society, who was also shown as second respondent in the I.D., filed W.P.No.30409/2007 challenging that portion of the award, which enabled the society to recover the entire liability arising out of the Award. In that writ petition, notice regarding admission was ordered on 18.09.2007. Pending notice regarding admission, interim stay was granted with liberty to the respondent to vacate the stay. Thereafter, the writ petition was admitted on 05.10.2010 and interim stay granted already was made absolute in M.P.No.1 of 2007. The contesting respondent has not filed any application to vacate the interim order. However, when the matter came up on 24.01.2012, this Court in order to find out whether the allegation of the workman that at the time when he was dismissed, there was conciliation proceedings pending before Conciliation Officer and there was no approval of the said officer was obtained in terms of Section 33(2)(b) of the Industrial Disputes Act, 1947 was true or not, this Court directed the records to be produced. Accordingly, original records from the Society relating to the dispute was produced and was also perused by this Court.
4. The facts arising out of the dispute are as follows:-
The contesting respondent G.K.Pachiappan was appointed as a Driver of the lorry owned by the Society. K.A.Arangarasu got elected as President for the Board of Directors with effect from 01.11.1996. According to the society, the contesting respondent had unauthorisedly carried 25 passengers in the lorry owned by the Society. The said lorry was intercepted by the Road Transport Officer, Gobichettipalayam and initiated legal proceedings. On 26.10.1998, the R.T.O., Gobichettipalayam issued memo to the Society for using the lorry other than the purpose granted in the permit. This incident resulted in issuing charge memo dated 27.11.1998 to the contesting respondent G.K.Pachiappan. The said workman gave explanation on 7.12.1998. As the explanation was not satisfactory, enquiry was ordered. The enquiry officer found the workman guilty. Based upon the enquiry report, a second show cause notice was issued on 16.03.1999. Considering the misconduct, a punishment of increment cut for three years with cumulative effect was imposed against the workman by order dated 14.08.1999. It is claimed by the Society that out of two lorries owned by them, one lorry was sold away and there has been one lorry and the same has been driven by one driver, therefore, service of G.K.Pachiappan was not needed at that time. Hence, he was posted as Watchman and was transferred to Erode Branch Society by proceedings dated 17.08.1999.
5. The workman joined duty as watchman on 18.08.1999 and worked two days and applied to go on medical leave, which was not sanctioned by the Society. However, the workman did not report for duty despite a reminder was sent to him. On 23.11.1999, the workman was placed under suspension pending an enquiry. At this stage, the trade union viz., Socialist Employees Union (Registration No.387/CBE) raised an industrial dispute under Section 2(k) of the Industrial Disputes Act, 1947 before the Government Labour Officer, Erode. The union placed a charter of demands containing nine demands. Demand Nos.1, 2 and 3 related to the workman concerned in this writ petition. The Union demanded cancellation of the penalty imposed on the workman viz., the penalty by way of three increments cut with cumulative effect, reduction in rank from the post of driver to that of the a watchman was protested. They also demanded revocation of suspension and also demanded compensation of Rs.1,00,000/-. Besides these demands, there were other demands regarding the workmen viz., Murugesan and Sudanthiranathan.
6. The notified Conciliation Officer by his proceedings No.514/2000 issued notice dated 05.05.2000 to the Society asking to appear with relevant records. Subsequently, the matter was posted on 24.05.2000. The Management of the society viz., K.A.Arangarasu sent a letter to the Conciliation Officer that due to administrative reasons, they could not appear on the date of the meeting. Thereafter, they have also authorised G.P.Meenakshi Sundaram, Superintendent to represent the Society. Authorisation was also given in favour of the Secretary. The society gave reply on 26.07.2000 before the conciliation officer. The conciliation officer fixed a final date for conciliation on 20.03.2000 vide memo dated 14.03.2000 and informed the parties that he was likely to send a failure report under Section 12(4) to the State Government.
7. In the meanwhile, during the pendency of the proceedings, a charge memo dated 24.12.1999 was issued to the workman. He submitted his explanation on 22.01.2000. Another enquiry officer was appointed for conducting the enquiry. The said enquiry officer set the workman exparte and completed the enquiry and submitted a report vide his report dated 07.04.2000 and held him guilty of charges. The workman by explanation dated 13.05.2000 requested for conducting a fresh enquiry. Notwithstanding the same, the order of dismissal dated 19.06.2000 was passed. It was at this stage, the workman raised an industrial dispute before the Labour Court, Erode.
8. In the meanwhile, the Conciliation Officer recorded his failure of conciliation and submitted a report to the State Government under Section 12(4) of the Industrial Disputes Act. The State Government issued an order under G.O.(D).No.906, Labour and Employment dated 19.12.2001 and referred the dispute relating to the penalty of three increments cut with cumulative effect for adjudication by the Labour Court, Salem. The other dispute relating to his non-employment raised as a dispute under the charter of demands, another failure report was sent by the Labour Officer on the same date. The State Government by its order in G.O.(D).No.907 Labour and Employment dated 19.12.2001 declined to refer the dispute relating to all other demands including reversion from the post of driver to that of a watchman. This was on the ground that the workman was dismissed from service with effect from 19.06.2000 and thereafter the dispute had become infructuous with reference to the temporary suspension and as regards claiming of Rs.1,00,000/- as compensation was held to be not an industrial dispute. In so far as the dispute raised under Section 2-A(2) of the Industrial Disputes Act relating to the non-employment, on the strength of the failure report, the workman filed a claim statement before the Labour Court vide its claim statement dated Nil May 2001. The said claim statement was registered as I.D.No.314 of 2001 and notice was issued to the society. In the claim statement, the workman not only made the management of the society as a respondent, but also the Ex-President of the society viz., K.A.Arangarasu as second respondent.
9. On notice from the Labour Court, the society filed a counter statement dated Nil March 2003 before the Labour Court on behalf of the management. The workman had examined himself as W.W.1 and on his side 38 documents were filed and marked as Ex.W.1 to Ex.W.38. On the side of the society, one Meenakshi Sundaram was examined as M.W.1 and on their side 15 documents were filed and marked as Ex.M.1 to Ex.M.15. During the aforesaid period, the elected board of directors were superseded and a Special Officer was appointed on 26.05.2001. Thereafter, the dispute was defended on behalf of the Society by the Special Officer before the Labour Court.
10. The Labour Court held that against the dismissal of the workman, the labour union has raised charter of demands against the punishment imposed on the petitioner and in that regard a conciliation was pending before the Conciliation Officer. But the management did not seek approval from the Conciliation Officer under Section 33(2)(b) though an industrial dispute was pending. Therefore, the Labour Court held that the order of dismissal dated 19.06.2000 was illegal and cannot be valid. For the purpose of holding that the conciliation was pending, the labour court relied upon Ex.W.36, which is the failure report. Thereafter, it held that since the then President of the society had failed to discharge his legal obligation and he has passed the illegal order of dismissal, he is also to be held liable for the action of the society, thereafter, ordered reinstatement with continuity of service and backwages. The Labour Court ordered compensation of Rs.5,000/- and also Rs.300/- towards suit costs and also gave liberty to the society to take appropriate action for recovering the loss from the Ex-President (petitioner in W.P.No.30409/2007).
11. In so far as the findings recorded by the Labour Court that at the relevant time, a collective dispute was pending under Section 2(k) of the I.D.Act, and it was obligatory on the part of the society to seek approval from the conciliation officer cannot be found fault with. This Court after going through the records found that there was a dispute pending which was actively pursued by the trade union. The management without obtaining an approval from the conciliation officer under Section 33(2)(b) of the I.D.Act and proceeding with their termination order will necessarily become void abinitio. The Supreme Court in its judgment in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma, reported in (2002) 2 SCC 244, at page 249 held as follows :
"6. Answer to the question on which conflicting decisions are rendered, as noticed above, depends on a fair reading and proper interpretation of Section 33(2)(b) of the Act. Prior to the amendment of 1956, the provision contained in Section 33 corresponded to the present Section 33(1) only. The object behind enacting Section 33, as it stood before it was amended in 1956, was to allow continuance of industrial proceedings pending before any authority/court/tribunal prescribed by the Act in a peaceful atmosphere undisturbed by any other industrial dispute. In course of time, it was felt that unamended Section 33 was too stringent for it placed a total ban on the right of the employer to make any alteration in conditions of service or to make any order of discharge or dismissal even in cases where such alteration in conditions of service or passing of an order of dismissal or discharge, was not in any manner connected with the dispute pending before an industrial authority. It appears, therefore, that Section 33 was amended in 1956 permitting the employer to make changes in conditions of service or to discharge or dismiss an employee in relation to matters not connected with the pending industrial dispute. At the same time, it seems to have been felt that there was need to provide some safeguards for a workman who may be discharged or dismissed during the pendency of a dispute on account of some matter unconnected with the dispute. This position is clear by reading the redrafted expanded Section 33 in 1956 containing five sub-sections. For the present purpose, we are concerned with the proviso to Section 33(2)(b). The material and relevant portion of Section 33 reads:
33. Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings.(1) * * * (2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman,
(a) * * *
(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 discharged or dismissed, 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.
7. The proviso expressly and specifically states that no workman shall be discharged or dismissed 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. It is clear from the proviso to Section 33(2)(b) that the employer may pass an order of dismissal or discharge and at the same time make an application for approval of the action taken by him. In Strawboard case2 dealing with the contention that if the employer dismisses or discharges a workman and then applies for approval of the action taken and the Tribunal refuses to approve the action, the workman would be left with no remedy as there is no provision for reinstatement in Section 33(2), it is held that: (AIR pp. 1504-05, para 8) If the Tribunal does not approve of the action taken by the employer, the result would be that the action taken by him would fall and thereupon the workman would be deemed never to have been dismissed or discharged and would remain in the service of the employer.
13. ....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.
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.
12. Under these circumstances, there is no legal infirmity in the order passed by the Labour Court. Hence, W.P.No.28854/2007 is liable to be dismissed. No costs. In so far as the writ petition filed by K.A.Arangarasu-Ex President of the society is concerned, Mr.N.Manokaran, learned counsel for the petitioner in W.P.30409/2007 contended that the said Board of Directors has been superseded. It is for the Special Officer to defend the proceedings. But however in the present case, it was unnecessary for the said K.A.Arangarasu to file a separate writ petition since he was already the second respondent in the writ petition filed by the management.
13. In any event, a careful perusal of the impugned award shows that the labour court had not directly ordered recovery from the Ex-President of the society but had only directed the society to take proper action to recover the amounts under the provisions of the Tamil Nadu Cooperative Societies Act. If any wilful loss was caused to the society, the society can always institute proceeding by surcharging such officials who were responsible for causing the loss. If at all the society takes any action against the Board of Directors of the society, the past President has remedies under the Act. It is unnecessary to go into the issue since so far no amount was recovered from him. It is suffice to state that the Labour Court has not given any positive direction to the society to recover the amount. On the other hand, the Labour Court carefully used the term "jFe;j eltof;if K:yk;" (i.e, through appropriate action). As and when such proceedings are initiated, it is for the petitioner in W.P.No.30409/2007 to defend himself in those proceedings. Therefore, W.P.No.30409/2007 also stands dismissed as unnecessary as it was premature. No costs. Consequently, connected M.P.No.1 of 2007 also stands closed.
nvsri To The Presiding Officer The Labour Court Salem