Madras High Court
Balaji Oil Industries (P) Ltd vs The Labour Officer-I on 24 October, 2019
Author: S.M.Subramaniam
Bench: S.M. Subramaniam
W.P.No.17499 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.10.2019
CORAM
THE HONOURABLE MR.JUSTICE S.M. SUBRAMANIAM
W.P.No.17499 of 2008
and
M.P.Nos.1 of 2008 and 1 & 2 of 2013
Balaji Oil Industries (P) Ltd.,
39, 2nd Main Road,
SIPCOT, Ranipet-632 403. .. Petitioner
-vs-
1.The Labour Officer-I,
Office of the Labour Officer,
No.10, Thiyagarajapuram,
Vellore-632 001.
2.C.Shanmugam .. Respondents
Petition under Article 226 of the Constitution of India praying for
issuance of Writ of Certiorari to call for the records of the 1 st
respondent dated 03.06.2008 in Approval Petition No.1333/2007 and
quash the same.
For Petitioner : Mr.Anand Gopalan
For M/s.T.S.Gopalan & Co.
For Respondents : R1 – Mr.J.Ramesh,
Additional Government Pleader
: R2 – Mr.R.Rajaram
******
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http://www.judis.nic.in
W.P.No.17499 of 2008
ORDER
The order dated 03.06.2008 passed by the 1st respondent in Approval Petition No.1333/2007 is under challenge in the present writ petition.
2.The writ petitioner, Balaji Oil Industries Private Limited is engaged in the manufacture of refined edible oil and vanaspati. The petitioner Management is having two boiler plants operated in the industry. There are about 34 workers working in the industry during the relevant point of time and they are classified as operators, firemen and helpers. The 2nd respondent was a fireman and was working in VTA-10 thermic heater boiler and his job was to ensure that the woodlog is heated in the boiler and to ensure adequate generation of steam for production activities. The 2nd respondent should remove the ashes accumulated then and there to ensure smooth functioning of machine without any stoppage of production.
3.On 03.08.2007, when the 2nd respondent was in the second shift in the thermic heater plant, the shift Chemist, Mr.B.Ravichandran noticed that the ashes were accumulated in a huge quantity and 2/26 http://www.judis.nic.in W.P.No.17499 of 2008 informed the 2nd respondent to remove the same so as to avoid damage to the machinery and otherwise, it would halt production activities. But the 2nd respondent refused to heed to his instructions and left the shift without removing the ashes. The shift Supervisor gave a complaint on 03.08.2007, against the 2nd respondent for his act of disobedience. In respect of the above misconduct, a charge sheet dated 13.08.2007, was issued, as the allegation is a misconduct under Rule 16(a) to Schedule I of the Tamil Nadu Model Standing Orders Act, 1947. The 2nd respondent gave a reply on 16.08.2007, making certain allegations. Being not satisfied with the reply, the petitioner Management ordered for a domestic enquiry and the Enquiry Officer conducted enquiry by providing an opportunity to the workman concerned. The petitioner also participated in the process of domestic enquiry. The 2nd respondent workman cross examined the witnesses. On behalf of the 2nd respondent, a co-worker was also examined and a document was marked. Based on the documents as well as the evidences placed before the Enquiry Officer, he submitted a report holding that the charges against the workman are proved. Based on the proved charges, a second show cause notice was issued and finally an order of dismissal was passed by the writ petitioner Management. 3/26 http://www.judis.nic.in W.P.No.17499 of 2008
4.The petitioner Management submitted that an application under Section 33(2)(b) of the Industrial Disputes Act, 1947 (for short “the Act”) was preferred seeking approval for the dismissal of the 2nd respondent. Along with the termination letter dated 20.11.2007, a copy of the approval petition and Demand Draft for a sum of Rs.4010/- was sent to the 2nd respondent.
5.Learned counsel for the petitioner states that the approval petition filed by the writ petitioner Management was kept pending for long time with the Labour Officer. The 2nd respondent meanwhile filed a 2A petition on 14.07.2007, alleging non-employment before the 1st respondent. The 1st respondent issued notice to the petitioner on 26.12.2007. The petitioner submitted a reply on 29.01.2008, stating that the 2nd respondent could not maintain a petition under Section 2A, as the approval petition filed by them was not disposed of and therefore, the 1st respondent cannot entertain the petition filed by the workman.
6.Immediately after receipt of the reply from the 1st respondent on 14.02.2008, the petitioner was called for an enquiry. When the 4/26 http://www.judis.nic.in W.P.No.17499 of 2008 petitioner Management appeared on the said date, they were informed to appear on 22.02.2008. The petitioner Management appeared on the said date and believed that the said hearing was in respect of the 2A petition filed by the 2nd respondent. However, the 1st respondent proceeded with an enquiry in respect of the approval petition filed by the writ petitioner numbered as A.P.No.1333/2007, and orders were reserved. The 2nd respondent did not file any counter statement to the approval petition filed by the petitioner. It is submitted that by order dated 03.06.2008, the 1st respondent held that the Enquiry Officer had failed to appreciate the document filed by the 2 nd respondent and accordingly, the punishment of dismissal from service is unfair and not in proportionate with the gravity of the proved charges. Thus, the writ petitioner is constrained to move the present writ petition.
7.Learned counsel for the petitioner mainly contended that the approval petition filed by the writ petitioner Management was decided hastily by the 1st respondent Labour Officer, even the 2nd respondent workman had not filed any counter affidavit in respect of the allegation that the order of dismissal amounts to victimisation, unfair labour 5/26 http://www.judis.nic.in W.P.No.17499 of 2008 practice or otherwise. Thus, the findings arrived by the 1st respondent regarding victimisation, unfair labour practice are not based on any materials or based on the counter by the workman. This apart, the proportionality of the punishment cannot be gone into in an approval petition filed under Section 33(2)(b) of the Act. In this regard, learned counsel for the writ petitioner cited a recent judgment of the Hon’ble Supreme Court in John Dsouza vs. Karnataka State Road Transport Corporation [Civil Appeal No.8042 of 2019: Dated 16.10.2019] wherein, the Hon’ble Supreme Court in paragraphs 37 and 38 held as follows:-
“37.In Cholan Roadways Ltd. vs. G.Thirugnanasambandam [Appeal (Civil) No.3392 of 2002: Dated 17.12.2004] (supra) also, this Court gave opportunity to the workman to take recourse to such remedy as was available to under the law for questioning the order of dismissal.
38.The Labour Court or Tribunal, therefore, while holding enquiry under Section 33(2)(b) cannot invoke the adjudicatory powers vested in them under Section 10(i)(c) and (d) of the Act nor can they in the process of formation of their prima facie view under Section 33(2)(b), dwell upon the proportionality of punishment, as erroneously done in the instant case, 6/26 http://www.judis.nic.in W.P.No.17499 of 2008 for such a power can be exercised by the Labour Court or Tribunal only under Section 11A of the Act.”
8.With reference to the above judgment, learned counsel for the petitioner reiterated that in an approval petition, the Labour Officer cannot adjudicate the proportionality of the punishment imposed. The five-points formula decided in the case of Lalla Ram vs. Management of D.C.M. Chemical Works Ltd. reported in 1978 AIR 1004 are to be followed. Contrarily, the 1st respondent has decided the proportionality of the punishment imposed without any proper adjudication on merits. Thus, the impugned order is liable to be scrapped.
9.Learned counsel for the writ petitioner cited a judgment of the Hon'ble Supreme Court in the case of Messrs Bharat Iron Works vs. Bhagubhai Balubhai Patel And Others reported in (1976) 1 SCC 518 wherein, the Hon’ble Supreme Court observed that “victimisation is a serious charge by an employee against an employer, and therefore, it must be properly and adequately pleaded giving of particulars upon which the charge is based to enable the employer to fully meet them. The charge must not be vague or indefinite being as 7/26 http://www.judis.nic.in W.P.No.17499 of 2008 it is an amalgam of facts as well as inferences and attitudes”. For better appreciation, paragraph 11 of the judgment is extracted hereunder:-
“11.The onus of establishing a plea of victimisation will be upon the person pleading it. Since a charge of victimisation is a serious matter reflecting, to a degree, upon the subjective attitude of the employer evidenced by acts and conduct, these have to be established by safe and sure evidence. Mere allegations, vague suggestion and insinuations are not enough. All particulars of the charge brought out, if believed, must be weighed by the tribunal and a conclusion should be reached on a totality of the evidence produced.”
10.In paragraph 12 of Messrs Bharat Iron Works cited supra, the Supreme Court observed that “a proved mis-conduct is antithesis of victimisation as understood in industrial relations. This is not to say that the tribunal has no jurisdiction to interfere with an order of dismissal on proof of victimisation”. Thus, victimisation is to be established beyond doubt and based on some concrete materials.
11.In the case of Management of Tamil Nadu State Transport Corporation (Coimbatore) Limited vs. 8/26 http://www.judis.nic.in W.P.No.17499 of 2008 M.Chandrasekaran reported in (2016) 16 SCC 16, the Hon’ble Supreme Court in paragraph 12, held as follows:-
“12. The moot question is about the jurisdiction of the Joint Commissioner of Labour (Conciliation) whilst considering an application for approval of order of punishment under Section 33(2) (b) of the Industrial Disputes Act, 1947. It is well settled that the jurisdiction under Section 33(2)(b) of the Act is a limited one. That jurisdiction cannot be equated with that of the jurisdiction under Section 10 of the Industrial Disputes Act. This Court in the case of Cholan Roadways (Supra) observed thus:
“18. The jurisdiction of the Tribunal while considering an application for grant of approval has succinctly been stated by this Court in Martin Burn Ltd. Vs R.N. Banerjee (AIR 1958 SC 79). While exercising jurisdiction under Section 33(2) (b) of the Act, the Industrial Tribunal is required to see as to whether a prima facie case has been made out as regard the validity or otherwise of the domestic enquiry held against the delinquent; keeping in view the fact that if the permission or approval is granted, the order of discharge or dismissal which may be passed against the delinquent employee would be liable to be challenged in an appropriate proceeding before the Industrial Tribunal in terms of the provision of the Industrial Disputes Act. In Martin Burn’s case (supra) 9/26 http://www.judis.nic.in W.P.No.17499 of 2008 this court stated:
“27. ............... A prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed. While determining whether a prima facie case had been made out the relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence. It may be that the Tribunal considering this question may itself have arrived at a different conclusion. It has, however, not to substitute its own judgment for the judgment in question. It has only got to consider whether the view taken is a possible view on the evidence on the record. (See Buckingham & Carnatic Co. Ltd. Vs The Workers of the Company (1952) Lab. AC 490 (F).”” (emphasis supplied)”
12.Relying on the above judgments, learned counsel for the petitioner made a submission that the 1st respondent has exceeded his jurisdiction in deciding the proportionality of the punishment imposed without even any counter affidavit filed by the 2nd respondent workman and without adjudicating the materials available on record. Thus, the approval petition is liable to be scrapped. 10/26 http://www.judis.nic.in W.P.No.17499 of 2008
13.Learned counsel for the 2nd respondent disputed the entire contentions submitted on behalf of the writ petitioner by stating that the case on hand is a classic case, where the writ petitioner Management has committed an unfair labour practice as well as victimisation. The Labour Court has rightly considered the proportionality regarding the punishment imposed. Admittedly, the major punishment of dismissal from service was imposed. Thus, even under an approval petition, under Section 33(2)(b), the Labour Officer is empowered to go into the proportionality of the punishment imposed by the employer.
14.Learned counsel for the 2nd respondent is of an opinion that the 2nd respondent was victimised and therefore, the Labour Officer has rightly considered the proportionality of the punishment imposed by the employer and consequently, the writ petition is liable to be rejected.
15.Learned counsel for the 2nd respondent cited a judgment of the Bombay High Court in the case of Sri Rajendra B. Oza vs. Air 11/26 http://www.judis.nic.in W.P.No.17499 of 2008 India reported in 2003 LLR 6 wherein, the following observations are made in paragraph 7 of the judgment:-
“7. In my opinion, the punishment imposed by the Respondent employer by dismissing the petitioner for his absence for 38 days was shockingly disproportionate, severe and harsh which cannot be approved by the Tribunal while deciding the approval application under Section 33(2)(b) of the Act. The tribunal therefore has committed an error of law in approving the application filed by the respondent employer. The impugned judgment and order of the Tribunal is quashed and set aside. The approval application filed by the Respondent employer is hereby dismissed. The petitioner is deemed to be in employment and would be entitled to all the consequential benefits. Rule is made absolute.”
16.In the case of Management of the Federation of Indian Chambers of Commerce and Industry vs. Their Workmen, Shri R.K.Mittal reported in (1971) II L.L.J. 630, the Hon’ble Supreme Court, in paragraph 31, observed as follows:-
“31. ................. but where the punishment is so disproportionate that no reasonable employer would ever have imposed it in like circumstances, the Tribunal may treat the imposition of such punishment 12/26 http://www.judis.nic.in W.P.No.17499 of 2008 as itself showing victimisation or unfair labour practice. ............ We cannot help feeling that the Federation had made a mountain out of a mole hill and made a trivial matter into one involving loss of its prestige and reputation. In this view the appeal is dismissed with costs.”
17.The High Court of Rajasthan in the case of M/s.Aditya Mills Ltd. vs. Ram Dayal and Others reported in (1973) I L.L.J. 538, in paragraph 7, held as follows:-
“7. The word "victimisation" has come to acquire great significance in the sphere of employer and employee relationship. According to the second edition of the Webster's New Twentieth Century Dictionary the word "victim" means (1) a person or animal killed, a sacrifice to some God in a religious rite; (2) some one or something killed or destroyed or injured or otherwise harmed by or suffering from some act, condition, agency or circumstance, as victims of war; (3) a person who suffers some loss especially by being dwindled ; a dupe. In National Tobacco Co. of India's case (supra) the Calcutta High Court has observed :
“Victimisation means one of two things: The first is where the workman concerned is innocent and yet he is being punished because he has in some way 13/26 http://www.judis.nic.in W.P.No.17499 of 2008 displeased the employer, for example, by being an active member of a union of workmen who were acting prejudicially to the employer's interest. The second case is where an employee has committed an offence but he is given a punishment quite out of proportion to the gravity of the offence, simply because he has incurred the displeasure of the employer in a similar manner as mentioned above. But where it is found that the employee is guilty of gross misconduct then there cannot be any question of victimization because it merits dismissal by itself.” Decided cases cited by the learned Counsel for the respondent indicate instances where an employee has been punished even though he was innocent, Sridharan Motor Service, Attur. Industrial Tribunal, Madras and Ors. 1959 I L.L.J. 380, or the punishment was shockingly disproportionate to the misconduct, Hind Construction and Engineering Co., Ltd. v. Its Workmen, or where it was due to the displeasure against the workman on account of his union activities, Assam Oil Company, Ltd. v. Its Workmen 19601 L.L J. 587, or disadvantageous transfer due to union activities, Pure Kustore Colliery v. Bhajan Dusadh and Ors. 1969 1 L.L.J. 129, or arbitrary action against a secretary of union, Cox and King's (Agents), Ltd. v. Their Employees 19491 L.L.J. 796. In our opinion victimisation 14/26 http://www.judis.nic.in W.P.No.17499 of 2008 consists in punishing an employee for any object other than the one of inflicting just and appropriate punishment for a proven lapse.”
18.Relying on the above judgments, learned counsel for the 2nd respondent emphasised that the case on hand is also a classic one, where the Management has victimised the workman and they have committed an act of unfair labour practice. Thus, the 1 st respondent Labour Officer has not committed any irregularity or excessiveness and he has rightly gone into the merits of the case as well as the proportionality of the punishment and rejected the approval petition. Thus, there is no infirmity and the writ petition is liable to be dismissed.
19.Learned counsel for the 2nd respondent pleaded that there is no evidence to establish that the charges are proved. In the absence of any evidence, the Labour Officer is right in coming to the conclusion that the punishment of dismissal is inappropriate.
20.Considering the arguments, this Court is of an opinion that scheme of the Industrial Disputes Act, 1947 as well as its provision 15/26 http://www.judis.nic.in W.P.No.17499 of 2008 have got scope, purpose and object. The scope, purpose and object of Section 33(2)(b) of the Act was considered by the Constitutional Courts on number of occasions. This Court also had an occasion to consider the scope of Section 33(2)(b) of the Act and the following principles were followed in the case of The Management, Tamil Nadu State Transport Corporation (Salem) Ltd., vs. The Special Deputy Commissioner of Labour and Another [W.P.No.7403 of 2017: Dated 26.09.2019], and the relevant portions are extracted hereunder:-
13. In this regard, the learned counsel for the writ petitioner cited the judgment of the Hon'ble Supreme Court of India in the case of Lalla Ram vs. D.C.M.Chemical Works Ltd and Another [(1978) 3 SCC 1]. The guidelines formulated by the Supreme Court with reference to the issues to be considered by the competent authority under the approval petition filed under Section 33(2)(b) of the Industrial Disputes Act, 1947. In paragraph-12 of the Supreme Court judgment (cited supra), the following guidelines are issued and the said guidelines are extracted hereunder:-
“12. The position that emerges from the above quoted decisions of this Court may be stated thus: In proceedings under Section 33(2)(b) of the Act, the 16/26 http://www.judis.nic.in W.P.No.17499 of 2008 jurisdiction of the Industrial Tribunal is confined to the enquiry as to (i) whether a proper domestic enquiry 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 employer 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 decisions of this Court in Bengal Bhatdee Coal Co. v. Ram Prabesh Singh [AIR 1964 SC 486 : (1964) 1 SCR 709 : (1963) 1 LLJ 291 : 24 FJR 406], Titaghur Paper Mills Co. Ltd. v. Ram Naresh Kumar [(1961) 1 LLJ 511: (1960-61) 19 FJR 15] , Hind Construction & Engineering Co.Ltd. v. Their Workmen [AIR 1965 SC 917 : (1965) 2 SCR 85 : (1965) 1 LLJ 462 : 27 FJR 232] , Workmen of Messrs Firestone Tyre & Rubber Company of India (P) Ltd. v.
Management [(1973) 1 SCC 813 : 1973 SCC (L&S) 341 : AIR 1973 SC 1227 : (1973) 3 SCR 587] and Eastern Electric & Trading Co. v. Baldev Lal [(1975) 4 SCC 684 : 1975 SCC (L&S) 382 : 1975 Lab IC 1435] 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 17/26 http://www.judis.nic.in W.P.No.17499 of 2008 punishment or whether it is excessive or too severe yet an inference of mala fides may in certain cases be drawn from 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 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 the time indicated above applied to the authority before which the main industrial dispute is pending for approval of the action taken by him.” 18/26 http://www.judis.nic.in W.P.No.17499 of 2008
14. The five points to be considered by the Authorities Competent, while considering the application filed under Section 33(2)(b) of the Industrial Disputes Act, 1947, are narrated by the Supreme Court in the paragraph cited supra.
15. The learned counsel for the writ petitioner contends that all these issues were considered by the first respondent and the findings were made in favour of the writ petitioner. While-so, the first respondent has made a finding erroneously that the punishment of dismissal is a harsh punishment. That is why the first respondent has entered into the arena of punishing the proportionality of the punishment imposed by the management for which he has no jurisdiction or powers.
16. Relying on the judgment (cited supra), it is contended that the first respondent has no jurisdiction to interfere with the quantum of punishment imposed by the management by the employer and the dis- proportionality cannot be decided while dealing with the approval petition filed under Section 33(2)(b) of the Industrial Disputes Act, 1947.
17. The Hon'ble Supreme Court in paragraph-13 of the judgment (cited supra) made an observation that “thus the jurisdiction of the Industrial Tribunal being a limited one, as stated above and all the essential requisites of the proviso to Section 33(2)(b) 19/26 http://www.judis.nic.in W.P.No.17499 of 2008 of the Act being present in the instant case, the Industrial Tribunal was not, in our opinion, justified in withholding its approval and the High Court was perfectly right in passing the impugned judgment and order”. Thus, the scope of the approval petition and the points to be considered in the approval petition are limited. It is not an adjudication on the order of dismissal and it is an approval petition, which is to be decided and requirements as contemplated under the provisions are to be considered by the first respondent.
18. With reference to Section 33(2)(b) of the Industrial Disputes Act, 1947, the Supreme Court formulated the guidelines and the five points to be considered are well enumerated in the judgment (cited supra) itself. Beyond the points contemplated, the authority competent cannot exceed its jurisdiction by adjudicating the proportionality or otherwise regarding the punishment imposed by the employer. Such an adjudication can be done only under the Industrial Disputes if any raised by the workman.
19. The learned counsel for the second respondent workman disputed the contentions raised on behalf of the learned counsel for the writ petitioner by stating that the first respondent considered the harshness of the punishments taking note of the fact that the allegation of unauthorised absence was on 20/26 http://www.judis.nic.in W.P.No.17499 of 2008 certain genuine reasons and therefore had taken a lenient view and consequently, rejected the approval petition. As such there is no infirmity in respect of the findings in the order impugned and the health condition, nature of punishment and the act of victimisation were considered by the first respondent for the purpose of rejecting the approval petition.
20. The learned counsel for the second respondent relied on the judgment of Hon'ble Single Judge of this Court in the case of Tamil Nadu State Transport Corporation, Villupuram Represented by Managing Director vs. Joint Commissioner of Labour (Conciliation), Chennai and Another [(2011) 1 LLJ 646 (Mad.)], wherein the High Court held that the decision authority rejecting the approval petition on the ground that the punishment imposed was too harsh was validated. Therefore, over the said principle, the present writ petition is liable to be dismissed.
21. The learned counsel for the second respondent workman contended that the second respondent-workman was a victim in a major accident occurred during the year 2008 and he was continuously taking treatment. He suffered certain disabilities and on account of such disabilities, he remained absent for about 16 days and therefore, there was a mistake on the part of the employer even 21/26 http://www.judis.nic.in W.P.No.17499 of 2008 in calculating the period of unauthorised absence. The one month salary along with the notice was not given properly and on that ground also, the writ petition is liable to be rejected.
22. Considering the arguments of the respective learned counsel appearing on behalf of the writ petitioner as well as the second respondent-workman, there was no dispute in respect of the legal principles settled by the Supreme Court in the case of Lalla Ram (cited supra). The five points to be adjudicated in an approval petition are well settled and even the respective learned counsel appearing for the parties have no quarrel on that.”
21.This Court is of a considered opinion that the legal principles in clear terms are settled by the Supreme Court of India in the case of Lalla Ram cited supra. The issues to be decided in an approval petition under Section 33(2)(b) are laid down in the said case by the Supreme Court. Thus, the scope of the approval petition with reference to Section 33(2)(b) had already been settled and therefore, the expansion of the scope of the Labour Officer is impermissible. If the merits, demerits, proportionality and other connected evidences are allowed to be adjudicated in an approval petition, then there may not be any scope for further adjudication in an industrial dispute, if any 22/26 http://www.judis.nic.in W.P.No.17499 of 2008 raised under section 2A of the Industrial Disputes Act. This exactly is the reason for which the Courts have held that each provision of the Industrial Disputes Act, 1947 has its own scope, purpose and object. Thus, the provision is to be followed scrupulously with reference to the scope and object. In other words, in the event of exceeding the jurisdiction, the procedures, objects and the purpose sought to be achieved under the Act would be defeated.
22.For example, if an approval petition is decided akin to that of an industrial dispute to be decided under Section 2A of the Act by the Labour Court, then the Labour Officer is undoubtedly exceeding his powers or usurping the powers of Labour Court regarding the adjudication of the merits including proportionality, unfair labour practice, victimisation or otherwise. Equally, this Court cannot close the avenues regarding the powers of the Labour Officers to adjudicate the approval petition under Section 33(2)(b) of the Act. Undoubtedly, adjudications are required even for grant of approval or rejection of approval. However, the principles laid down by the Supreme Court in Lalla Ram cited supra are to be followed as a principle and any excess exercise of power cannot be permitted.
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23.The Hon'ble Mr.Justice V.R.Krishnaiyer, while speaking for the Bench, formulated 5 principles to be adopted, while deciding an approval petition in Lalla Ram case cited supra. Thus, the scope of adjudication must be confined to those area, where the facts are to be considered with reference to the approval petition. Contrarily, if other merits and demerits are allowed to be adjudicated by the Labour Officer in an approval petition, then the very scope for further adjudication under the Industrial Disputes Act, 1947 is taken away or would loose its significance. This being the purport of the Act, this Court has no hesitation in coming to the conclusion that the 1st respondent Labour Officer in this Writ petition arrived a conclusion that the punishment of dismissal was imposed by way of victimisation and committing unfair labour practice by the writ petitioner Management. Such a finding was given in the absence of a specific counter affidavit by the workman before the 1st respondent in the approval petition.
24.The writ petitioner has stated that the 2nd respondent did not file any counter statement to the approval petition filed by the writ petitioner Management. Further, the Labour Officer held that the Enquiry Officer had failed to appreciate the documents filed by the 2 nd 24/26 http://www.judis.nic.in W.P.No.17499 of 2008 respondent and therefore, the petitioner Management had imposed a harsh punishment on the 2nd respondent.
25.Considering the facts and circumstances and the manner in which the approval petition was adjudicated and decided by the 1 st respondent, this Court is of a firm opinion that the order impugned, passed by the 1st respondent, is improper and not in consonance with the settled principles in the matter of deciding the approval petition under Section 33(2)(b) of the Act as discussed in the aforementioned paragraphs. Consequently, the order dated 03.06.2008, passed by the 1st respondent in Approval Petition No.1333/2007 is quashed and the writ petition stands allowed. However, there shall be no order as to costs. Consequently, connected miscellaneous petitions are closed.
24.10.2019 Speaking Order Index: Yes abr 25/26 http://www.judis.nic.in W.P.No.17499 of 2008 S.M.Subramaniam, J.
(abr) To The Labour Officer-I, Office of the Labour Officer, No.10, Thiyagarajapuram, Vellore-632 001.
W.P.No.17499 of 2008
24.10.2019 26/26 http://www.judis.nic.in