Madras High Court
The Management Of Cheran Transport ... vs Mr. G. Balasubramaniam And Another on 26 February, 1999
Equivalent citations: 1999(3)CTC500, (2000)IILLJ187MAD
Author: P.D. Dinakaran
Bench: P.D. Dinakaran
ORDER
1. The management of the Cheran Transport Corporation has filed W.P.NO. 17037 of 1991 for the issue of a writ of certiorari calling for the records relating to the order dated 29.3.1991 made in Petition No. 85 of 1988 in I.D.No.62 of 1982 on the file of the second respondent-Industrial Tribunal, Tamil Nadu, therein and to quash the same wherein the second respondent-Industrial Tribunal had refused to approve the punishment of dismissal from service imposed by the management against the first respondent- workman by exercising the powers under Section 33(2)(b) of the Industrial Disputes Act, 1947.
2. One Thiru G. Balasubramaniam has filed W.P.No. 4065 of 1994 for the issue of a writ of Certiorari calling for the records relating to the Award dated 9.11.1992, made in I.p.No. 53 of 1989, on the file of the first respondent-Labour Court therein, setting aside the order of dismissal of the petitioner from servire dated 24.5.1988, by the second respondent-management therein, with a direction to reinstate the workman with backwages.
3. Since both the writ petitions are relating to the dismissal of the workman namely the first respondent in W.P.No. 17037 of 1991 and the petitioner in W.P.No.4065 of 1994, they were heard together and disposal of by the common order.
4. For the purpose of convenience, the petitioner in W.P.No. 17037 of 1991, who is the second respondent in W.P.No. 4065 of 1994 is hereinafter referred to as the management and the first respondent in W.P.No. 17037 of 1991, who is the petitioner in WP.No.4065 of 1994, is hereinafter referred to as the workman.
5. The brief facts of the case are stated as follows:
The workman was employed as a conductor in the Town Branch III, Coimbatore in the Cheran Transport Corporation Ltd. Certain charges were framed against the workman by a charge memo dated 7.9.1986 alleging that the workman did not enter Rs. 1.25 ticket and Re. 1.00 ticket in the invoice on 28.8.1986, while he was on duty in the Railway gate at Coimbatore; that the same was discovered by the Checking Inspector at 8.30 p.m. at the Railway Gate, Gandhipuram, Coimbatore; and that the failure to enter the said two tickets in the invoice amounts to violation of Rule 14(d) of the Standing Orders of the Management, which reads as follows:
"Acts and omissions constituting Misconduct:The following acts and omis-sions shall be treated as misconduct:
.....
(d) Theft, fraud or dishonesty in connection with the employer's business or property or a theft of another employee's property within the estab-lishment."
6. In pursuance of the said charges, a domestic enquiry was conducted. The enquiry officer, by his report dated 10.10.1987 found that the said charges were proved. Therefore, the workman, was dismissed from service with one month salary by an order dated 24.5.1988 of the management and consequently, the management filed a Petition No. 85 of 1988 before the Industrial Tribunal, for the approval of the said order of dismissal of the workman, as contemplated under Section 33(2)(b) of the Industrial Disputes Act, 1947 (hereinafter referred as the "Act").
7. During the pendency of the Petition No. 85 of 1988, seeking the approval of the Industrial Tribunal, as the contemplated under Section 33(2)(b) of the Act, the workman also raised an individual industrial dispute, namely I.D.No. 53 of 1989 under Section 2(A)(ii) of the Act as the Conciliation Officer, by his report dated 11.1.1989 submitted his failure report. During the pendency of the above LD.No. 53 of 1989, the Industrial Tribunal, by an order dated 29.5.1991 made in Petition No. 85 of 1988, refused to approve the order of dismissal holding that the same is extreme and unwarranted. Hence, W.P.No. 17037 of 1991, filed by the management.
8. After the said order of disapproval dated 29.5.1991 by the Industrial Tribunal, the Labour Court, by its order dated 9.11.1992 in I.D.No. 53 of 1989, of course, taking into consideration the said order of disapproval dated 29.5.1991, set aside the order of dismissal of the workman dated 24.5.1988 and directed the management to reinstate the workman into service, but, without backwages. Hence, W.P.No. 4065 of 1994 filed by the workman.
9. The management examined one N.K. Shanmugam, who was the Checking Inspector, as their witness, before the enquiry officer. The workman examined himself and the driver, as witness on his behalf.
10. The management witness namely the Checking Inspector had stated that all the ten passengers found in the bus had been issued with tickets, but, out of the said ten tickets namely one for Rs. 1.25 and another for Re. 1.00 had not been entered in the invoice. The Checking Inspector had also admitted that there was no correction or overwriting in the invoice.
11. The workman deposed that even though he had issued tickets to all the ten passengers found in the bus, he could not enter two tickets in the invoice because he was tired, suffering from light chest pain and the light in the bus was dim. But, the workman was not cross-examined by the management with regard to his above explanation. That apart, the driver who was examined on behalf of the workman had deposed that the light in the bus was very dim and that even though he had already reported the same in the log book a week back, the same was not repaired. No suggestion was put forth by the Management disputing the above statement of the driver.
12. The learned counsel for the management, placing reliance on the decision Lalla Ram v. D.C.M. Chemical Works, , contends that the refusal to approve the order of dismissal of the workman, by the Industrial Tribunal is not attracted by any of the test laid down in the above decision.
13. She further contends that even though the Tribunal had come to the conclusion that the failure to enter the two tickets namely Rs.1.25 and Re. 1.00 tickets, in the invoice, could be termed as a serious misconduct, warranting the punishment of dismissal from service, in view of the explanation offered by the workman, that he was tired, suffering from chest pain and the light in the bus was very dim, the Tribunal still had failed to consider that the management had made out a prima facie case for violation of Rule 14(d) of the Standing Orders, since the workman had committed a misconduct of dishonestly in connection with the employer's business by not entering the two tickets in the invoice. Failure to consider the charge for the violation of Rule 14(d) of the Standing Orders vitiates the proceedings of the Industrial Tribunal dated 29.5.1991 made in Petition No. 85 of 1988 and therefore, the same is liable to be set aside and consequently, the Labour Court is justified in adjudicating I.D.No. 53 of 1989 filed by the workman under Section 2(A)(ii) of the Act, wherein the Labour Court, on well found reasons, held that the workman had not corrected and overwritten the invoice with regard to the entries of the said two tickets, set aside the order of dismissal dated 24.5.1988 and reinstated the petitioner without backwages.
14. Per contra, Mr.K. Chandru, learned senior counsel appearing for the workman contends that the Industrial Tribunal had rightly refused to approve the order of dismissal of the workman dated 24.5.1988, under Section 33(2)(b) of the Act, as the same would amount to unfair labour practice, unduly harsh, severe, unconsceionable, shockingly disproportionate, excessive, extreme and totally unwarranted and the order of disapproval of the Industrial Tribunal dated 29.5.1991 stands to the test laid down by the Apex Court in Lalla Ram v. D.C.M. Chemical Works, .
15. Elaborating his contention, the learned senior counsel contends that the impugned order of dismissal of the workman amounts to unfair labour practice as per Section. 2(ra) read with clause 5(g) of Chapter I of V Schedule of the Act relating to unfair labour practice.
16. Mr.K. Chandu the learned senior counsel for the workman invited my attention to the admission of the management witness namely the Checking Inspector that the workman had issued tickets to all the ten passengers boarded in the bus, which includes the two tickets namely Rs.1.25 and Re. 1.00, which were not entered in the invoice and that there was no evidence for shortage of any amount collected for the said tickets. On the other hand, the management never cross examined either the workman who deposed that he could not enter the said two tickets in the invoice as he was tired, suffering from chest painand the light inside the bus was very dim or the driver who was examined to the effect that the light inside the bus was very dim and the same was not repaired inspite of his report in the log book for a week.
17. Mr.K. Chandru, the learned senior counsel for the workman also contends that when no suggestion was putforth to the workman, by the management when he was in the witness box, it would not be proper on the part of the enquiry officer to assume that the workman had either corrected or overwritten the entries in the invoice and therefore, contends that the report of the enquiry officer, which was based on certain assumptions and presumptions is held to be perverse and hence, liable to be set aside, as the evidence on record did hot warrant any inference that the petitioner had corrected or overwritten the entries in the invoice. He further contends that even assuming the explanation for hot entering the said two tickets in the invoice is unacceptable, the same, at the worst, amounts only to negligence but would not amount either to pilferage on misappropriation or fraud or dishonesty in connection with the employer's business attracting Rule 14(d) of the Standing Orders, as admittedly, the management had not established any misappropriation or fraud or dishonestly in Connection with the employer's business as the workman had issued tickets to all the ten passengers found travelling in the bus and also collected money from them, which tallies with the amount the workman possessed at the time of checking, inasmuch as there was neither any complaint nor any charge not any finding in that regard.
18. The learned senior counsel also invited my attention to rule 14 (ab) and (ah) of the Standing Orders, which reads as follows:
"(ab) - Failure to issue tickets.
(ah) - Wilful falsification, defacement or destruction of any records of the industrial establishment whether maintained by himself or by other employees:"
19. Inviting my attention to the deposition of the management witness namely the Checking Inspector that the workman had issued tickets to all the passengers in the bus found at the lime of checking and that there was no correction or overwriting in the invoice, Mr.K. Chandru, learned senior counsel contends that the conduct of the workman cannot be termed as misconduct under rule 14 (ab) and (ah) of the Standing Orders.
20. Mr.K. Chandru, the learned senior counsel further contends that the management had erroneously referred to the past record of the petitioner while awarding the impugned punishment of dismissal from service, which is quite disproportionate to the charges and the findings referred to above. According to him, the alleged misconduct, at the worst, would amount to negligence and therefore, the punishment of dismissal from service is disproportionate and the same would amount to unfair labour practice, illegal and victimisation. In this regard, he relies upon the decision of the Apex Court in Colour-Chem Ltd. v. Alaspurkar A.L. Ors,. 1998 (1) LLJ 695.
21. Mr.K. Chandru, the learned senior counsel contends that once the refusal to approve the order of dismissal from service of the workman dated 24.5.1998, by the Industrial Tribunal in the impugned order dated 29.5.1991 is justified, nothing survived in I.D.No.53 of 1989 before the Labour Court to adjudicate and to pass an award dated 9.11.1992 and therefore, the refusal of backwages by the award dated 9.11.1992 in I.D.No. 53 of 1989 is illegal.
22. I have given careful consideration to the submissions of both sides.
23. Under the facts and circumstances of the case, the following vital issues arise for my consideration:
(a) Whether the Industrial Tribunal is right in refusing to approve the order of dismissal of the workman dated 24.5.1988, while exercising its power under Section 33(2)(b) of the Act?
(b) Whether the Labour Court is justified in proceeding with the adjudication inspite of the refusal of approval of the order of dismissal dated 24.5.1988, by the Industrial Tribunal under Section 33(2)(b) ?
24. Issue No.1: Whether the Industrial Tribunal is right in refusing to approve the order of dismissal of the workman dated 24.5.1988, while exercising his power under Section 33(2)(b) of the Act?
The Apex Court, while interpreting the powers of the Industrial Tribunal under Section 33(2)(b) of the Act in Lalla Ram v. D.C.M. Chemical Works, , has held as follows:
"In proceedings under S. 33(2)(b) of the Act, the jurisdiction of the Industrial Tribunal is confined to the enquiry as to (i) whether a proper domestic in accordance with the relevant rules/Standing Orders and principles of natural justice has been held; (ii) Whether a prima facie case for dismissal based on legal evidence adduced before the domestic tribunal is made out; (iii) Whether the ernployer had come to a bona fide conclusion that the employee was guilty and the dismissal did not amount to unfair labour practice and was not intended to victimise the employee, regard being had to the position settled by the Supreme Court that though generally speaking the award of punishment for misconduct under the Standing Orders is a matter for the management to decide and the Tribunal is not required to consider the propriety or adequacy of the punishment or whether it is excessive or too severe yet an inference of mala fides may in certain cases be drawn form the imposition of unduly harsh, severe, unconscionable or shockingly disproportionate punishment; (iv) whether the employer has paid or Offered to pay wages for one month to the employee and (v) whether the employer has simultaneously or within such reasonably short time as to form part of the same transaction applied to the authority before which the main industrial dispute is pending for approval of the action taken by him. If these conditions are satisfied, the Industrial Tribunal would grant the approval which would relate back to the date from which the employer had ordered the dismissal. If however, the domestic enquiry suffers from any defect or infirmity, the labour authority will have to find out on its own assessment of the evidence adduced before it whether there was justification for dismissal and if it so finds it will grant approval of the order of dismissal which would also relate back of dismissal which would also relate back to the date when the order was passed provided the employer had paid or offered to pay wages for one month to the employee and the employer had within time applied to the authority before which the main industrial dispute is pending for approval of the action taken by him.
25. Before testing the order of the Tribunal dated 29.5.1991 in refusing to approve the order of dismissal dated 24.5.1988, of the workman, it is necessary to refer the following Standing Orders of the Management.
"Rule 14(d):- Theft, fraud or dishonesty in connection with the employer's business or property or a theft of another employee's property within the establishment."
"Rule 14 (ab):- Failure to issue tickets."
"Rule 14 (ah):- Wilful falsification, defacement or destruction of any records of the industrial establishment whether maintained by himself or by other employees."
26. It is not in dispute that the workman had issued the tickets to all the ten passengers, who were travelling in the bus at the time of checking. Even as per the evidence of the management witness namely the Checking Inspector, though the workman had issued tickets namely Rs.1.25 and Re.1.00 to the passengers, but the same was not entered in the invoice. The Checking Inspector admitted that there was no correction or overwriting in the invoice. Therefore, admittedly, neither rule 14 (ab) of the Standing Orders of the management, namely failure to issue tickets nor rule 14 (ah) of the Standing Orders of the management, namely wilful falsification, defacement or destruction of any records of the industrial establishment whether maintained by himself or by other employees would apply. The amount that was available with the workman, at the time of checking, tallies with the amount collected from the passenger and therefore, there was no evidence on record adduced by the management to show that the workman had committed any act of misappropriation or fraud in connection with the employer's business and, in the absence of any such material evidence, it cannot be said that the workman had committed any act of dishonesty, particularly when he had collected Rs. 1.25 and Re.1.00 and issued the ticket. The mere failure to enter the two tickets in the invoice could not be a concluding factor to hold that the Workman had committed an act of dishonesty in connection with the employer's business, particularly when he had offered an explanation that he could not make entries in the invoice, as he was tired, suffering from chest pain and the light in the bus was very dim, especially when the deposition of the workman corroborates with the deposition of the driver, that the light in the bus was very dim inspite of his complaint in the log book for one week. The evidence of the workman was not disputed by the management, by way of cross-examination. In the absence of such suggestion to disprove the material evidences available on record, the finding of the enquiry officer that the workman had committed an act of dishonesty in connection with the employer's business is nothing but an assumption and presumption, which is not sustainable in law.
27. It is in this regard, I am obliged to refer the decision of this Court in C. Kumaraswami v. Third Addl. Labour Court, 1993 (3) LLN 785, wherein this Court has held as follows:
"As regards collusion between the petitioner and the driver of the lorry, the management has miserably failed to establish the same by any acceptable evidence. The enquiry officer has proceeded on certain assumptions. He has observed that the petitioner must have struck open the false bottom with the dip rod pipe in the pretext of his checking the dip after the unloading was completed. No such suggestion was put to the petitioner when he was in the witness box. In the absence of the same, it is not proper on the part of the enquiry officer to have assumed that the petitioner had done the same. The evidence on record does not warrant any inference that the petitioner was aware of the false fitting in the truck at any time."
28. It is well settled in law that the conclusion reached in a disciplinary proceedings must be on the basis of acceptable evidence, which should have some degree of definiteness though the strict and technical rules of the evidence are not necessarily be followed; but if the findings are not based on acceptable evidence, it would be regarded as an error of law and the same could be corrected by a writ, inasmuch as assumptions and presumptions cannot take place of proof, by means of acceptable evidence.
29. The mere finding of the enquiry officer that the charges are held proved against the workman in the instant case, as though he had violated rule 14(3) of the Standing Orders of the management, without assigning any reason for the same is not worthy to be accepted or approved, as rightly pointed out by Mr.K. Chandru, the learned senior counsel for the workman.
30. I am impressed with the argument of Mr.K. Chandru, the learned senior counsel for the workman that even though the workman, at the worst, be charged for negligence in not entering the two tickets in the invoice, since he was not charged for the same, he cannot be punished even in that regard.
Consequently, even the finding of such negligence cannot be a ground to justify the order of dismissal. Hence, the finding as to the alleged negligence is also is not sustainable in law. Therefore, the impugned order of dismissal, assuming the failure to enter the two tickets in the invoice is satisfactorily proved by the management, is held to be severe, extreme and shockingly disproportionate punishment to the charges levelled against the petitioner, which warranted the Industrial Tribunal to interfere with the order of dismissal dated 24.5.1988.
31. That apart, 1 am also obliged to refer to Section 2(ra) of the Act wherein, the term "unfair labour practice" is defined as follows:
"unfair labour practice" means any of the practices specified in the Fifth Schedule."
32. Section 25(T) prohibits the employer or the workman from committing any unfair labour practice, which reads as follows:
"Prohibition of unfair labour practice - No employer or workman or a trade union, whether registered under the Trade Unions Act, 1926 (16 of 1926), or not, shall commit any unfair labour practice."
33. Chapter I of Fifth Schedule prescribes the unfair labour practice or the part of the employer and the trade union of the employer. Clause 5 of Chapter I declares the following discharge or dismissal of workman, which amounts to unfair labour practice, reads as follows:
'To discharge or dismiss workmen-
(a) by way Of victimisation;
(b) not in good faith, but in the colourable exercise of the employer's rights;
(c) by falsely implicating a workman in a criminal case on false evidence or on concocted evidence;
(d) for patently false reasons;
(e) on untrue or trumped up allegations of absence without leave;
(f) in utter disregard of the principles of natural justice in the conduct of domestic enquiry or with undue haste;
(g) for misconduct of a minor or technical character, without having any regard to the nature of the particular misconduct or the past record or service of the workman, thereby leading to disproportionate punish-ment."
34. In Colour-Chem. Ltd. v. Alaspurkar A.L. & Ors, 1998 (1) LLJ 694, the Apex Court has held as follows:
"In our view, Clause (g) of Item 1 of Schedule IV of the Act is not reasonably capable of two constructions. Only one reasonable construction is possible on the express language of Clause (g), namely, that it seeks to coyer only those types of unfair labour practices where minor misconducts or technical misconducts uave resulted in dismissal or discharge of delinquent workmen and such punishment in the light of the nature of misconduct or past record of the delinquent is found to be shockingly disproportionate to the charges of minor misconduct or charges of technical misconduct held proved against the delinquent. One and only subject-matter of Clause (g) is the misconduct of minor or technical character. The remaining parts of the clause do not indicate any separate subject-matter like the major misconduct. But they are all adjuncts and corollaries or appendages of the principal subject, namely, minor or technical misconduct which in given set of cases may amount to resulting in shockingly disproportionate punishment if they are followed by discharge or dismissal of the delinquent."
"Imposition of such shockingly disproportionate punishment by itself, therefore, has to be treated as legal victimisation apart from not being factual victimisation as on the latter aspect the Labour Court has held against the respondent-workmen and that finding has also remained well sustained or record."
"By imposing such grossly disproportionate punishment on the respondents the appellant-management had tried to kill the fly with a seldge hammer. Consequently it must be held that the appellant was guilty of unfair labour practice."
35. As already observed, under the facts and circumstances of the case, even the alleged misconduct of workman, namely non-entry of the two tickets in the invoice, which is found to be correct by the Industrial Tribunal, is minor in nature and therefore, the same would not require an extreme punishment of dismissal from service. When clause 5(g) of Chapter I of Fifth Schedule of the Act, contemplates that the management has to record the nature of the particular misconduct or the past record of the service of the workman, the charge of negligence in not entering the two tickets in the invoice is of very minor in nature and therefore, the order of dismissal, by merely taking into account the past record of service of the workman is arbitrary unreasonable and hence amounts to unfair labour practice attracting clause 5(g) of Chapter I of Fifth Schedule of the Act.
36. I am satisfied that the mere non dealing of the charge relating to the alleged misconduct under rule 14(d) of the Standing Orders, by the Industrial Tribunal cannot be a ground to interfere with the well considered order of the Industrial Tribunal dated 29.5.1991, refusing to approve the order of dismissal dated 24.5.1998, as there was no acceptable evidence on record to substantiate the said misconduct under rule 14(d) of the Standing Orders. In any event, since the said misconduct itself is based on the allegation relating to the non-entry of the two tickets in the invoice, which is very minor in nature, would not., by itself, require an order of dismissal as the management did not suffer any financial loss, whatsoever. Hence, I am of the considered opinion that the refusal to approve the order of dismissal is well founded.
37. Issue No.2: Whether the Labour Court is justified in proceeding with the adjudication inspite of the refusal to approval of the order of dismissal by the Industrial Tribunal under Section 33(2)(b) of the Act?
In this regard, I am obliged to refer Sections 2(k), 2(A), 10(1) and 33(2)(b) of the Act, which read as follows:
"Section 2(k): "Industrial dispute" means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person;"
"Section 2-A: Dismissal, etc., of an individual workman to be deemed to be an industrial dispute. (1) Where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute.
(2) Where no settlement is arrived at in the course of any conciliation proceeding taken under this Act in regard to be an industrial dispute referred to in sub-section (1), the aggrieved individual workman may apply, in the prescribed manner, to the Labour Court for adjudication of such dispute and the Labour Court shall proceed to adjudicate such dispute, as if such dispute has been referred to it for adjudication and accordingly all the provisions of this Act relating to adjudication of industrial disputes by the Labour Court shall apply to such adjudication.
"Section 10(1):- Reference of disputes to Boards, Courts or Tribunals - (1) Where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time, by order in writing, -
(a) refer the dispute to a Board for promoting a settlement thereof; or
(b) refer any matter appearing to be connected with or relevant to the dispute to a Court for inquiry; or
(c) refer the dispute or any matter appearing to be connected with, or relevant to, thedispute, if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudication; or
(d) refer the dispute or any matter appearing to be connected with, or relevant to the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule to a Tribunal for adjudication.
Provided that where the dispute relates to any matter specified in the Third Schedule and is not likely to affect more than one hundred workmen, the appropriate Government may, if it so thinks fit, make the reference to a Labour Court under Clause (c):
Provided further that where the dispute relates to any public utility service and a notice under Section 22 has been given, the appropriate Government shall, unless it considers that the notice has been frivolously or vexatiously given or that it would be inexpedient so to do, make a reference under this sub-section notwithstanding that any other proceedings under this Act in respect of the dispute may have commenced:
Provided also that where the dispute in relation to which the Central Government, it shall be competent for that Government to refer the dispute to a Labour Court or an Industrial Tribunal, as the case may be, constituted by the State Government."
"Section 33(2)(b):- Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings. -
.....
(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) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to drat workman immediately before the com-mencement of such proceeding; or
(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."
38. Section 2(k) of the Act defines the Industrial dispute and Section 2(A)(2) of the Act provides for the dismissal of an individual workman to be deemed to be an industrial dispute, which could be agitated before the Labour Court for under Section 2(A) of the Act. Section 10 of the Act deals with reference of disputes to the labour Court. Therefore, the powers conferred under Section 2(A)(2) of the Act and Section 10 of the Act are general in nature whereas Section 33(2)(b) of the Act confers a special jurisdiction on the Industrial Tribunal either approving or refusing the approval of the discharge or dismissal of the workman. A harmonious reading of the above Sections makes it clear that an industrial dispute under Section 2(A) of the Act cannot be adjudicated by the Labour Court, till an order was passed either approving or returning to approve Section 33(2)(b) of the Act. Therefore, the jurisdiction of the Industrial Tribunal conferred under Section 33(2)(b) of the Act, is a special jurisdiction and must prevail over the general jurisdiction conferred under Sections 2(A)(2) and 10(1) of the Act. Once, the industrial Tribunal refused to approve the order of dismissal dated 24.5.1988, nothing survives with the Labour Court to adjudicate thereafter as the very order of dismissal of the workman dated 24.5.1988 had become non-est in law. Consequently, the award dated 9.11.1992, refusing backwages to the workman is illegal and without jurisdiction and hence, the award dated 9.11.1992 insofar as the refusal of backwages to the workman from the date of dismissal till the date of reinstatement is set aside.
39. In the result, WP.No. 17037 of 1991 is dismissed and W.P.No. 4065 of 1994 is allowed. Consequently, the workman (the petitioner in W.P.No. 4065 of 1994 and the respondent in W.P.No. 17037 of 1991 is entitled to be reinstated with all attendant/service benefits, with full backwages from the date of dismissal, namely from 24.5.1988 and therefore, he is permitted to withdraw a sum of Rs. 60,000, which is deposited by the management to the credit of the claim Petition No. 85 of 1989 on the file of the Industrial Tribunal, Madras, as per the order of this Court dated 19.2.1992 made in WMP Nos. 25626 of 1991 and 2823 of 1992 in W.P.No. 17037 of 1991, with interest accrued thereon and the management is directed to pay the balance towards the backwages payable, from 24.5.1988 till the date of reinstatement, after adjusting a sum of Rs. 60,000 referred to above, within one month from the date of receipt of a copy of this order. No costs.