Rajasthan High Court - Jaipur
Nortanmal Joshi vs R S R T C And Anr on 6 October, 2012
Author: Mn Bhandari
Bench: Mn Bhandari
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR ORDER SB Civil Writ Petition No.15809/2012 Nortanmal Joshi versus RSRTC & anr 6.10.2012 HON'BLE MR. JUSTICE MN BHANDARI Mr VK Tamoliya for petitioner-workman BY THE COURT:
REPORTABLE By this writ petition, a challenge is made to the order dated 3.9.2012 passed by the Industrial Tribunal, Jaipur.
It is a case where respondent- Rajasthan State Road Transport Corporation (for short 'the Corporation') moved an application under section 33(2)(b) of the Industrial Disputes Act, 1947 (for short 'the Act') to seek approval of the order of punishment of dismissal from service. The application aforesaid is pending before the tribunal since 1995. The enquiry held by the Corporation was declared unfair, however, Corporation was given liberty to lead evidence to prove the charges. The petitioner workman moved an application for grant of interim relief/ subsistence allowance during the pendency of approval application. The application aforesaid was dismissed by the tribunal vide impugned order dated 3.9.2012.
Learned counsel for petitioner workman submits that on declaring enquiry to be unfair, the workman becomes entitled to subsistence allowance as an interim measure thus dismissal of the application for interim relief is illegal. The learned tribunal failed to consider that during the pendency of approval application under section 33(2)(b) of the Act, an interim order can be passed of the nature prayed by the workman. The tribunal, however, failed to consider its jurisdiction as per the settled law thus while setting aside the impugned order, petitioner workman may be awarded subsistence allowance during pendency of case before the tribunal. To support the arguments, reference of the judgments of this court in the case of Chief Manager, Ajmer through Head Office, RSRTC versus Hitlar Prasad & anr, SB Civil Writ Petition No. 5717/2012, decided on 29.8.2012 has been given. Therein, similar controversy was decided by this court in reference to the judgment of the Apex Court in the case of Hotel Imperial, New Delhi & ors versus Hotel Workers' Union, reported in 1959(II) LLJ 544 (SC). In the aforesaid case, it was held that Industrial Tribunal can grant interim relief in the appropriate case.
Another judgment referred by learned counsel for petitioner-workman is in the case of Manager, Jaipur Syntex Ltd versus Presiding Officer, Industrial Tribunal, Jaipur & ors, reported as 1989(59) FLR 99 and, lastly, the case of Management of Karnataka State Road Transport Corporation, Bangalore versus K Kempaiah, reported as 2001(88) FLR 616/ 2001(3) SLR 266. It is submitted that in those cases, interim relief was granted to the workman during the pendency of case before the Industrial Tribunal.
Learned counsel for the respondent-Corporation, on the other hand, submits that application for interim relief has rightly been rejected by the learned tribunal. The approval application under section 33(2)(b) of the Act was moved after issuance of the order of dismissal thus the employee cannot be treated to be in service while application for approval of order of punishment is pending before the tribunal. The subsistence allowance as per the Standing Orders is payable only when an employee is suspended and continued in service till order of punishment is passed. The prayer for interim relief during pendency of approval application was not maintainable, rather, if the interim relief is given to the workman and ultimately approval to the punishment is granted then the workman would be getting allowance without being in service of the Corporation. The acceptance of approval application subsequently relates back to the date of order of punishment originally passed. Thus, a dismissed employee is not entitled to the subsistence allowance. The prayer of the petitioner for grant of subsistence allowance as per the Standing Orders is thus not legal and justified. Reference of the judgment of the Hon'ble Apex Court in the case of R. Thiruvirkolam versus Presiding Officer & anr, reported as (1997) 1 SCC 9 has been given, wherein, it is held that even after declaration of enquiry to be unfair, if, ultimately, order of punishment is upheld, then the punishment will relate back to the date of its order and not from the date when the order is passed by the labour court/tribunal. It is prayed that impugned order may be maintained by this court.
I have considered rival submissions of learned counsel for parties and perused the record.
The question for my consideration is as to whether an application for grant of interim relief is maintainable during the pendency of approval application under section 33(2)(b) of the Act?
Before coming on the issue, it would be necessary to refer the provisions of section 33(2)(b) of the Act, which are quoted hereunder for ready reference -
33.Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings.- (1)During the pendency of any conciliation proceeding before a conciliation officer or a Board or of any proceeding before 2[ an arbitrator or] a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute, no employer shall, -
(a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding; or
(b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workmen concerned in such dispute, save with the express permission in writing of the authority before which the proceeding is pending.
(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 2[ 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 that workman immediately before the commencement of such proceeding; or
(b) for any misconduct not connected with the dispute, or 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.
Perusal of the provision quoted above reveals that under certain circumstances, approval of the order of punishment is required from the appropriate court or the tribunal. The purpose of section 33(2)(b) is to see that pending other dispute between the parties in which workman is not directly connected, an order of punishment may not be passed as a measure of victimisation. To see that the punishment is not an outcome of victimisation of the workman, certain conditions have been provided under the Act, out of which, one is approval application under section 33(2)(b) of the Act.
So far as present case is concerned, the order of punishment was passed by the respondents Corporation whereby petitioner was dismissed from service. After effecting the order of dismissal from service, an application for approval of punishment was moved simultaneously under section 33(2)(b) of the Act.
From the facts narrated above, it comes out that the order of punishment by which services of the petitioner workman have been dismissed, came in effect on the date of passing of the said order. If the approval of the punishment is granted then even if enquiry is held to be improper or unfair, order passed by the tribunal will approve punishment order from the date it was passed though on declaring enquiry to be unfair the employer leads its evidence to prove the charge(s) before the labour court/ tribunal. Therein, conclusion regarding proof of the charges are drawn by the labour court/tribunal yet if approval of the punishment order is granted, the dismissal takes place from the date of original order of punishment. The facts aforesaid are to be understood to find out as to whether an employee already dismissed from service can seek subsistence allowance which is otherwise payable to an suspended employee.
The declaration of enquiry to be unfair does not change the status of the workman from a dismissed employee to that of suspended employee or nullifying the punishment. In the background aforesaid, a direction for payment of subsistence allowance is not justified as there exist no provision to grant interim relief during the pendency of approval application even if enquiry is held to be unfair. If the application for grant of interim relief is accepted then a dismissed employee would be getting subsistence allowance and it may be that after adjudication, the punishment order is approved and as per the judgment of the Apex Court in the case of R Thiruvirkolam (supra), it will relate back to the date of the order of punishment originally passed then in what capacity a dismissed employee can get subsistence allowance. The issue aforesaid has not been focussed in detail thus considered in the present case.
So far as the judgment of this court in the case of Hitlar Prasad (supra) is concerned, the case therein was not arising of an application for approval but it was in relation to the pending reference case under section 10 of the Act. This court, by referring a judgment in the case of Dena Bank versus DV Kundadia reported as 2011(131) FLR 775, held that interim order can be passed. Therein, provision of section 10(4) of the Act was taken note of and given interpretation.
In this case, section 10(4) of the Act has no application because approval application is moved under section 33(2)(b) of the Act and it cannot be equated with the reference case under section 10 of the Act. This court referred many other judgments in the case of Hitlar Prasad (supra) but all those cases were arising out of reference under section 10 of the Act and not from approval application.
Even in the case of Horel Imperial (supra), the Hon'ble Apex Court decided the issue by referring section 10(4) of the Act. In the said case, the issue was as to whether a labour court can pass an interim order during the pendency of case before it. Therein, the order of dismissal was not passed against the workman rather a permission application was moved to impose punishment of dismissal and during that period workman was suspended thus question came as to whether he can be granted subsistence allowance during the pendency of permission application. The Hon'ble Apex Court decided the case after appreciating the facts as well as legal position on the issue and as therein the order of punishment had not taken effect. Therein, reference of section 10(4) of the Act has been given where while adjudicating reference case, the labour court/ tribunal can pass an order 'incidental thereto'.
The instant case is not for permission to impose punishment of dismissal but to seek approval of the dismissal order already passed. In the case of permission to impose punishment of dismissal, employee remains in service thus one has to consider difference between a approval application under section 33(2) of the Act than the permission application under section 33(1) and 33(3) of the Act for imposition of punishment. The difference of the reference case under section 10 of the Act is also required to be understood. If three provisions are taken into consideration then while the reference case is pending, certain orders can be passed by the tribunal/ labour court under section 10(4) of the Act if it is incidental to the dispute, however, no such provision exist for adjudication of approval application under section 33(2)(b) of the Act. Section 10(4) of the Act is quoted hereunder for ready reference -
10. 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) to (d) ................
(1A) to (3)..............
(4) Where in an order referring an industrial dispute to 4[ a Labour Court, Tribunal or National Tribunal] under this section or in a subsequent order, the appropriate Government has specified the points of dispute for adjudication, 5[ the Labour Court or the Tribunal or the National Tribunal, as the case may be] shall confine its adjudication to those points and matters incidental thereto.
The provisions aforesaid gives jurisdiction to the tribunal/ labour court to pass order 'incidental thereto'.
In the case of Manager, Jaipur Syntex Ltd (supra), the issue was again in reference to the provision of section 10(1) of the Act where a dispute was referred to the labour court/ tribunal thus judgment aforesaid was rendered taking note of the provisions of section 10(1) and 10(4) of the Act which is not the case herein.
The decision of Karnataka High Court in the case of K. Kempaiah (supra), was again on the issue in reference to section 10 of the ID Act. The position of fact is similar in the case of Rajasthan State Road Transport Corporation & anr versus Judge, Labour Court, Bikaner & anr, reported as 1997 WLC(Raj)UC 610. Therein, even no enquiry was held before passing of the order thus on the facts of that case, grant of interim relief was held to be justified. In my opinion, a difference has to be made between the two proceedings i.e. under section 10 of the Act where a dispute is referred to the labour court or the tribunal. The adjudication thereupon has to be made and section 10 (4) grants certain powers and jurisdiction of the tribunal/ labour court hence while adjudicating the reference, an order can be passed 'incidental thereto'.
The position of fact is not same when a approval application under section 33(2)(b) of the Act is moved by the employer. Therein, provision similar to that of section 10(4) of the Act, does not exist. The tribunal or the labour court are not given power to pass any order 'incidental thereto' while adjudicating approval application. In absence of specific provision, the labour court/ tribunal cannot assume jurisdiction for passing of order of the nature prayed for by the employee herein.
It is further necessary to clarify effect of application under section 33(1) or 33(3) of the Act where prior permission is sought to impose an order of punishment. Therein, punishment is given effect after permission thus pending permission application, relationship of employer and employee exist. Thus till grant of permission, an employee can seek subsistence allowance if he was suspended prior to the permission application. The position of fact is altogether different while an order of punishment is given effect and simultaneously its approval is sought under section 33(2)(b) of the Act. In that case, punishment of dismissal is made effective immediately and approval of the said action is prayed simultaneously. Therein, relationship of employer and employee comes to an end immediately on passing of the order. If enquiry is held to be unfair, relationship is not revived, rather, if the approval is granted, the order of punishment becomes effective from the date it was originally passed. In case approval is not granted and application is dismissed, the employee gets all the consequential benefits.
The difference between two provisions is required to be understood for appreciation of the judgment of the Hon'ble Supreme Court in the case of Hotel Imperial (supra). That was a case for permission under section 33(1) of the Act, whereas, provision of section 33(2)(b) of the Act is not similar. In the aforesaid background, interim relief in the shape of subsistence allowance cannot be granted if the enquiry is held to be unfair while adjudicating approval application.
A bare comparison of Sub-section (2) with Sub-sections (1) and (3) of Section 33 reveals that under the provisions of Section 33(1) and (3) prior permission before the action of dismissing an employee is required to be taken and the employee continues under suspension. Dismissal of such an employee takes effect from the date of permission granted by the Tribunal and it is not related back to the date of application preferred by the employer under Section 33 (1) or (3). Whereas in the cases falling under Section 33(2)(b) the requirement is that the employer must obtain approval as distinct from the requirement that he must obtain previous permission and the grant of such approval relates back to the date of dismissal and/or discharge. This distinction between Section 33(1) and (3) and Section 33(2) was particularly highlighted in the caes of Lord Krishna Textile Mills v. Its Workmen reported as AIR 1961 SC 860. Para 10 of the said judgment is reproduced hereasunder:
"(10) It would be noticed that even during the pendency of an industrial dispute the employer's right is now recognised to make an alteration in the condition's of service so long as it does not relate to a matter connected with the pending dispute, and this right can be exercised by him in accordance with the relevant standing orders. In regard to such alteration no application is required to be made and no approval required to be obtained. When an employer, however, wants to dismiss or discharge a workman for alleged misconduct not connected with the dispute he can do so in accordance with the standing orders but a ban is imposed on the exercise of this power by the proviso. The proviso requires that no such workman shall be discharged or dismissed unless two conditions are satisfied; the first is that the employee concerned should have been paid wages for one month, and the second is that an application should have been made by the employer to the appropriate authority for approval of the action taken by the employer. It is plain that whereas in cases falling under Section 33(1) no action can be taken by the employer unless he has obtained previously the express permission of the appropriate authority in writing, in cases falling under Sub-section 33(2) the employer is required to satisfy the specified conditions but he need not necessarily obtain the previous consent in writing before he takes any action. The requirement that he must obtained approval as distinguished from the requirement that he must obtain previous permission indicates that the ban imposed by Section 33(2) is not as rigid or rigorous as that imposed by Section 33(1). The jurisdiction to give or withhold permission is prima facie wider than the jurisdiction to give or withhold approval."
The Supreme Court in the above case explained the scope of jurisdiction under Section 33 (2)(b) in para 19 which is also quoted hereinbelow:
"In dealing with cases falling under Section 33(2) the industrial authority will be entitled to enquire whether the proposed action is in accordance with the standing orders, whether the employee concerned has been paid wages for one month and whether an application has been made for approval as prescribed by the said subsection. It is obvious that in cases of alteration of conditions of service falling under Section 33(2)(a) no such approval is required and the right of the employer remains unaffected by any ban. Therefore, putting it negatively the jurisdiction of the appropriate industrial authority in holding an enquiry under Section 33(2)(b) cannot be wider and is, if at all, more limited, than that permitted under Section 33(1), and in exercising its powers under Section 33(2) the appropriate authority must bear in mind the departure deliberately made by the Legislature in separating the two classes of cases falling under the two sub-sections, and in providing for express permission in one case and only approval in the other. It is true that it would be competent to the authority in a proper case to refuse to give approval, for Section 33(5) expressly empowers the authority to pass such order in relation to the application made before it under the proviso to Section 33(2)(b) as it may deem fit; it may either approve or refuse to approve, it can, however, impose no conditions and pass no conditional order.
(12). .........The Legislature has indicated that there should be no time lag between the making of the application and its final disposal, and so by Sub-section (5) it has specifically and expressly provided that such application should be disposed of as expeditiously as possible. This view proceeds on the assumption that the work "unless" "really means "until" and introduces a condition precedent,"
The Court observed that in view of the limited nature and extent of the enquiry permissible under Section 33(2)(b) all that the authority can do in dealing with an employer's application is to consider whether a prima facie case for according approval is made out by him or not. If before dismissing an employee, the employer conduct a proper domestic enquiry and has proceeded to pass the punishment order as a result of the said enquiry, all that the authority can do is to enquire whether the conditions prescribed by Section 33(2)(b) and the proviso are satisfied or not.
It is clearly seen from the observations that the Court noted the distinction between Section 33(1) and 33(3) and Section 33(2)(b). The Court further noted that under Section 33 (1) and (3), previous permission of the authority concerned should be obtained before any action is taken against the workman concerned unlike a case falling under Section 33(2)(b) of the Act where only its approval to an action already taken is required to be sought. This is also apparent from para 11 where the Court has emphasised that the cases filed under Section 33 (1) or Section 33(3) of the Act are 'permission' clauses and not approval clauses. In short, suspension of the employee does not amount to severance of employer employee relationship and, therefore, the management is obliged to pay such workman service and to pay him all the wages and subsistence allowance during the period of suspension.
Similar view was taken by the Bombay High Court in the case of Air India Ltd and etc versus Libio Francisco Colaco & anr, reported as 2004(4) SLR 116. Para 16 of the said judgment reads as under:-
16. Relying upon the observations in Jaipur Zila the learned single Judge has held that there is no distinction between the provisions of Section 33(2)(b) and Section 33(1) and (3). It was therefore, held that the decisions in Fakirabhai (1986 Lab IC 879 (SC)) and Ram Lakhan (2000 Lab IC 1371 (SC)) would apply with equal force to the cases under Section 33(2)(b). We are unable to agree with the view expressed by the learned single Judge. In Fakirabhai and Ram Lakhan the Court has confined its ratio only to the cases under Section 33(1) and (3) of the Act. In fact, in Fakirabhai a clear distinction is made between the two types of classes. In the former, the employee cannot be dismissed from service without obtaining the permission from the Tribunal. Therefore, obtaining a permission is condition precedent before the employee could be dismissed from service. However, under Section 33(2)(b), an employer can dismiss the employee from service on payment of one month's wages and such an employer has to apply for approval under Section 33(2)(b). Once the employee is dismissed from service, the question of putting him under suspension does not arise. Therefore, the ratio in Fakirbhai and Ram Lakhan is clearly inapplicable to proceedings under Section 33(2)(b).
The issue aforesaid can be viewed from different angle also. The subsistence allowance is prayed as per provision of Standing Orders or the rules applicable to the employee. The rules for subsistence allowance are applicable when an employee is placed under suspension. If the instant case is looked into, declaring enquiry to be unfair does not place a dismissed employee under suspension.
The question comes as to how an employee can be made entitled to subsistence allowance while he is not under suspension, rather, he is a dismissed employee? If the provision of Standing Orders is looked into, subsistence allowance is payable only to an employee under suspension and not to the employee dismissed from service. If the prayer of the petitioner workman is accepted, then by granting subsistence allowance, his status would be changed from a dismissed employee to that of an employee under suspension. It is not within the jurisdiction of the labour court/ tribunal, rather, even of this court. This is more so when grant of approval of punishment relates back from the date of its order in view of the judgment of the Hon'ble Supreme Court in the case of R. Thiruvirkolam (supra). Therein, the issue was as to whether by declaration of the enquiry to be unfair and subsequent order in favour of the employer, would make the order of punishment effective from the date of its passing or from the date of final order by the tribunal/ labour court. It was held that the decision of the labour court / tribunal will relate back to the date of order of punishment originally passed.
If the proposition laid down by the Hon'ble Apex Court applies to the present matter, then grant of approval will relate back to the date of order of punishment and if that is so, then how an employee dismissed from service will be entitled to interim relief during the period subsequent to the order of dismissal, more so when it will relate back or would be effective from the date of the order of punishment. In a case where approval is not granted, the employee is safeguarded as he would be entitled to all consequential benefits as if the order of dismissal was never passed. Thus, to balance the equities also, grant of subsistence allowance during the pendency of approval application seems to be improper because if the approval is granted, the workman would still get subsistence allowance without having relation of employer and employee and if approval application is dismissed then he would be entitled to full wages. Thus, in both the cases, workman will have the advantage against the rule of equity.
In view of aforesaid, I do not find any illegality in the impugned order passed by the Industrial Tribunal and otherwise interference in the interim order is not warranted while this court exercises jurisdiction under Article 226 of the Constitution of India as held by the Hon'ble Supreme Court in the case of Dena Bank (supra) . Para 2 of the said judgment is quoted hereunder for ready reference -
It is well settled by this Court that no writ should be entertained against an interim order of the Labour Court or the Industrial Tribunal. It is only when a final award is given, then a party should be allowed to challenge it if he is aggrieved.
In view of the discussion made above and as per the judgment of the Hon'ble Supreme Court in the case of Dena Bank (supra), I am not inclined to interfere in the impugned order passed by the tribunal dismissing the application moved by the petitioner workman for grant of interim relief. The writ petition is dismissed accordingly.
(MN BHANDARI), J.
bnsharma All corrections made in the judgment/ order have been incorporated in the judgment/ order being emailed.
(BN Sharma) PS-cum-JW