Madras High Court
P.R. Sampath Giri Vasan vs The Presiding Officer, Central ... on 30 April, 2004
Equivalent citations: [2004(102)FLR972], (2004)IIILLJ505MAD, (2004)3MLJ101
ORDER M. Thanikachalam, J.
1. This revision is directed against the order of the Central Government Industrial Tribunal-cum-Labour Court, Chennai, hereinafter called 'the Tribunal', in refusing to take the complaint on file under Section 33(A) of the Industrial Disputes Act, hereinafter called the Act and returning the same, as not maintainable.
2. The complainant/revision petitioner, Mr. P.R. Sampath Giri Vasan, joined in the service of the bank on 4.5.1992. It appears, without regularising the service of the petitioner and others, the respondent bank terminated the service of the petitioner and others. Therefore, on the representation of the General Secretary, Bank of India Staff Union, a reference was made by the Government, which was taken as I.D. No. 6/2001, wherein the adjudication relates to:
"Whether the action of the Bank of India is justified in not regularizing and instead, terminating the services of 1. Sri. R. Venkatesan, 2. Sri G. Mohan, 3. Sri K. Sampathkumar, 4. Sri P.R. Sampath Giri Vasan, 5. Sri R. Ravikumar and 6. Sri L. Shankar, casual labourers. If not, to what relief the workmen are entitled to?"
When the matter was pending, the General Secretary filed a memo stating, that the Union may be permitted to withdraw the dispute, as not pressed, requesting the Tribunal to pass an award, on the basis of the memo and treat the dispute as withdrawn. On that basis, the Tribunal passed an order on 11.10.2000. The award was communicated for publication in the gazette, which was received by the Central Government on 23.10.2000.
3. It seems, pending I.D. No. 6/2000, this revision petitioner/complainant was terminated from service on 16.9.2000. The revision petitioner/complainant realising, that his right will not be protected by the Union, probably preferred a complaint under Section 33(A) of the Act on 7.10.2000 through post, which was received by the Tribunal prior to 10.10.2000. Only thereafter, the petitioner in I.D. No. 6/2000 had filed a memo, agreeing to withdraw the dispute, that too, without any benefits. The complaint dated 7.10.2000 filed by the revision petitioner was returned by the office of the Tribunal, for the following reasons:
(A) "General Secretary filed claim statement as representative of registered union, which has chosen to withdraw this ID and the ID had been disposed off as withdrawn. Hence this petition by the petitioner (Sampath Giri Vasan) filed independently is not maintainable.
(B) In the absence of a reference being made by the Ministry for the dispute in the under mentioned name of the petitioner and since the reference already made has been taken as an ID has already been withdrawn by the 1st opposite party, Gen. Secretary of the union. The petitioner is advised to approach the Ministry for a fresh reference, if the Ministry deems it fit".
Despite the representation with reasons, the Tribunal refused to take cognizance of the complaint filed by the revision petitioner dated 7.10.2000, thereby compelling the workman, to come to this Court, seeking direction under Article 277 of the Constitution.
4. Heard the learned counsel for the petitioner, Mr. S. Vaidyanathan and the learned counsel for the respondents, Mr. Sanjay Mohan.
5. The learned counsel for the revision petitioner Mr. S. Vaidyanathan submits, that the award of the Tribunal in I.D. No. 6/2000 was received by the Central Government from the Tribunal only on 23.10.2000 and the Central Government directed the award to be published on or before 18.11.2000 in the gazette. He further argues, when the revision petitioner had filed the complaint, the award passed by the Tribunal did not come into force, as per Section 17 & 17(A) of the Industrial Disputes Act, 1947 and therefore, the Tribunal is bound to take the complaint filed by the petitioner, under Section 33(A) of the Act. It is the further submission of the learned counsel for the petitioner, that the crucial date of the complaint under Section 33(A) is 16.9.2000 i.e. the date of termination of the petitioner by the bank and on that date I.D.No. 6/2000 was pending, pertaining to non regularisation of the petitioner and therefore, the Tribunal ought to have numbered the dispute and adjudicated the same, under Section 33(A)(b) and the refusal to take the case, on file, is unjustified. On the above facts and circumstances of the case, the intervention of this Court is sought for, under the power conferred under Article 277 of the Constitution, to issue appropriate direction to the Tribunal, for taking the case on file.
6. On the other hand, the learned counsel for the second respondent, Mr. Sanjay Mohan submits, that the revision filed under Article 277 is not at all maintainable, since the Court is not empowered, to decide whether the order passed by the Tribunal in not taking the case on file, is correct or not, assuming that the Tribunal had committed an error.
7. In this case, it is unnecessary on the part of this Court, to go into detail, such as, whether the termination of the petitioner by the bank is illegal, whether the withdrawal of the previous I.D.No. 6/2000 by the union was authorised one or not and these matters could be left open to be agitated by the parties, in case, the complaint filed by the petitioner is to be maintained by the Tribunal under Section 33(A) of the Act.
8. Section 33(2) proviso of the Act says, no workmen shall be discharged or dismissed, unless he has been paid wages for one month and unless an application is made by the employer to the authority, before which the proceedings is pending, for approval of action taken by the employer, thereby mandating, when a dispute is pending, the employer should get an approval for the action taken. In this case, admittedly, when I.D. No. 6/2000 pertaining to non regularisation of Sampath Giri Vasan was pending, it seems he was terminated from service on 16.9.2000 and no approval was obtained, by filing an application, as contemplated under Section 33(2) of the Act. Therefore, according to the learned counsel for the petitioner, the employer had contravened the provisions of Section 33 of the Act, during the pendency of the proceedings, before the Industrial Tribunal, causing grievance to the employee and such grievance should be settled under Section 33A of the Act. In this view alone, as contemplated under Section 33A(b), an application was filed, since the employer had not obtained any permission from the Tribunal for terminating the service of the petitioner. Therefore, as rightly submitted by the learned counsel for the petitioner, even in the absence of reference being made by the Ministry, for the dispute, in this case, a petition could be maintained and the second return appears to be not correct.
9. As aforementioned, when I.D. No. 6/2000 was pending, a complaint was sent by post, which is permissible, to the Tribunal on 7.10.2000 itself, which was received by the Tribunal prior to 10.10.2000. Before giving permission for withdrawal, the office should have taken cognizance of this complaint and in this view, the first return by the Tribunal that the petition filed by him independently, is not maintainable, is incorrect. Thus, it is seen, prima facie, there is contravention of Section 33 of the Act, while proceedings was pending and therefore, the employee is entitled to invoke Section 33A(b) of the Act and the Tribunal even without reference, ought to have taken the complaint on file and adjudicated the same on merits.
10. The learned counsel appearing for the respondents placing reliance on Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma submits that a complaint under Section 33A could be maintainable, if an approval is granted under Section 33(2)(b) of the Act. He further submits, since no approval was granted, invoking Section 33A(b) does not arise for consideration. In support of the above contention, the following observation is relied on.
"The said section as 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".
Taking the above observation, ignoring the other observations in the above cited judgment, the learned counsel for the respondents submits, that in the case of an application for approval and its grant, then alone Section 33A(b) will come, which is unacceptable to me, which could be seen from the further observation of the Apex Court in the same judgment, which is as follows:
"The view that when no application is made or the one made is withdrawn, there is no order of refusal of such application on merit and as such the order of dismissal or discharge does not become void or inoperative unless such an order is set aside under Section 33A, cannot be accepted. In our view, not making an application under Section 33(2)(b) seeking approval or withdrawing an application once made before any order is made thereon, is a clear case of contravention of the proviso to Section 33(2)(b). An employer who does not make any application under Section 33(2)(b) or withdraws the one made, cannot be rewarded by relieving him of the statutory obligation created on him to make such an application. If it is so done, he will be happier or more comfortable than an employer who obeys the command of law and makes an application inviting scrutiny of the authority in the matter of granting approval of the action taken by him. Adherence to and obedience of law should be obvious and necessary in a system governed by rule of law. An employer by design can avoid to make an application after dismissing or discharging an employee or file it and withdraw before any order is passed on it, on its merits, to take a position that such order is not inoperative or void till it is set aside under Section 33A notwithstanding the contravention of Section 33(2)(b) proviso, driving the employee to have recourse to one or more proceedings by making a complaint under Section 33A or to raise another industrial dispute or to make a complaint under Section 31(1)."
From the above observation, it is seen, in order to avoid any attempt by the employer, Section 33A is introduced to defeat the design of the employer, who can avoid to make an application, after dismissing or discharging an employee, or file it or withdraw before any order is made on it or on its merits, to take a position that such order is not inoperative or void till it is set aside under Section 33A, thereby driving the employee, to have recourse to one or more proceedings, by making complaint under Section 33A or to raise another industrial dispute, or to make a complaint under Section 31(1). In this case admittedly, the employer did not seek approval, for the termination of the employee during the pendency of the dispute, thereby he had contravened Section 33(2)(b) of the Act, thereby giving right to the employee to invoke Section 33A(b), which cannot be shut down, on the ground, that this provision will not come into operation, since no approval was granted. Whether approval granted or not, when there is a contravention of Section 33, during the pendency of the proceedings, then certainly 33A should come to the aid of the employee, to protect his right and for that purpose, he could well maintain a complaint, which cannot be crushed at threshold.
11. The contention of the learned counsel for the petitioner, that there is no valid dismissal or discharge of the workmen and the non compliance of the condition contained in Section 33(2)(b), which is mandatory in nature, would render the order of dismissal void, cannot be decided in this revision and these matters are left open to be agitated, in case of direction.
12. The learned counsel for the respondents submits, that the supervisory jurisdiction conferred on the High Court under Article 277 of the Constitution, is confined only to see whether the Tribunal has proceeded within its parameter and not to correct an error, apparent on the face of the record, much less an error of law, since the High Court does not act as an appellate court or tribunal and in this view, assuming the returns made by Tribunal is incorrect or it had committed an error of law, the same cannot be rectified under Article 277 of the Constitution.
13. On the other hand, the learned counsel for the petitioner submits, that the Tribunal has not passed any order on merit, after hearing both sides and therefore, that return cannot be a decision or an order passed on merit and the administrative inaction could be rectified, under Article 277 of the Constitution, under the supervisory jurisdiction and in this way, the High Court is not going to act as an appellate court and under the supervisory jurisdiction, the flagrant violation committed by the Tribunal could be tested and appropriate direction could be given.
14. In Chandrasekhar Singh v. Siya Ram Singh , the Apex Court has ruled that power under Article 277 of the Constitution is to be exercised most sparingly and only in appropriate cases, in order to keep the subordinate courts within the bounds of their authority and not for correcting mere errors. In Essen Deinki v. Rajiv Kumar , the Apex Court has ruled, though Article 277 does not vest unlimited authority or prerogative to correct an order, it says only errors of law patently on record warrant correction under Article 277. As rightly pointed out by the learned counsel for the petitioner, the Tribunal has not given a decision, which would mean, after considering the rival claims of the parties, whereas only returns have been made, without hearing the parties on merits, which appears to be error of law patently, warranting correction under Article 277.
15. The learned counsel for the petitioner invited my attention to a decision in State v. Navojot Sandhu , wherein the Apex Court has held as follows:
"It is settled that this power of judicial superintendence must be exercised sparingly and only to keep subordinate courts and tribunals within the bounds of their authority and not to correct mere errors. Further, where the statute bans the exercise of revisional powers it would require very exceptional circumstances to warrant interference under Article 277 since the power of superintendence was not meant to circumvent statutory law. It is settled law that the jurisdiction under Article 277 could not be exercised in the "cloak of an appeal in disguise".
Further, it is observed:
"If the order assailed is purely of an interlocutory character, which could be corrected in exercise of revisional powers or appellate powers, the High Court must refuse to exercise its inherent power. The inherent power is to be used only in cases where there is an abuse of the process of the court or where interference is absolutely necessary for securing the ends of justice."
In our case, the order under challenge is not of an interlocutory character, which cannot be corrected either under revisional powers and therefore, necessarily the inherent power of this Court is a must, to give relief to the workman, whose right is not properly recognised and refused to be adjudicated. Therefore, the contention of the learned counsel for the respondents that this Court cannot interfere under Article 277 of the Constitution, to correct the error of law committed by Tribunal, is unacceptable to me, since it is not a decision made by the Tribunal, considering the rival claims of the parties. In order to meet the ends of justice, a direction should be issued to the court concerned. In the light of the foregoing discussion, the revision petition deserves acceptance.
16. The petitioner/complainant after the termination of his service had raised an industrial dispute under Section 2A of the Act before the Conciliation Officer and the Government of India, Ministry of Labour, has referred the dispute for adjudication by the Industrial Tribunal in I.D. No. 751/2001. Questioning the same, it appears the Management had filed W.P. 9349/2002 and obtained an interim stay. Interim stay was modified, allowing Central Government Industrial Tribunal to proceed with the adjudication till enquiry i.e. examination of witnesses. On that basis, the learned counsel for the respondent submits, that this matter itself could be agitated in that Industrial Dispute pending and a separate petition need not be filed under Section 33A of the Act. In the affidavit itself, the petitioner has stated that once the complaint is directed to be taken by the Tribunal and even he may withdraw the complaint. Therefore, the industrial dispute raised by this petitioner, cannot be a bar to agitate his right under Section 33A of the Act, since it is available, for the reasons assigned by me supra and this right has to be agitated, irrespective of the subsequent industrial dispute raised.
In the result, the revision is allowed and the Industrial Tribunal is directed to take the complaint dated 7.10.2000 on file under Section 33 A of the Act in I.D.No. 6/2000 and after giving notice to the parties concerned, directed to dispose of the same expeditiously. No costs.