Andhra HC (Pre-Telangana)
V. John vs Singareni Collieries Co. Ltd. And Anr. on 4 September, 1995
Equivalent citations: 1995(3)ALT463, (1997)IIILLJ724AP
Author: B. Subhashan Reddy
Bench: B. Subhashan Reddy
ORDER P.S. Mishra, C.J.
1. This appeal is preferred by the workman-Respondent in the writ petition against the order of the learned single Judge under which he has made the order of stay of all proceedings in pursuance of an order under Section 33(2)(b) of the Industrial Disputes Act (for short 'the Act'). Appellant-workman, V. John, is employed as Tripman with the writ petitioner-Respondent company. He has been subjected to an enquiry for the alleged violation of the respondent-Company's Standing Order No. 16(1), 16(2) and 16(6). He has, however, been found guilty of the charges levelled against him and ordered to be dismissed with effect from September 22, 1993. Since, however, the above action is sought to be taken against the workman and as there are proceedings pending as contemplated under Section 33(1) of the Act, the respondent-Company invoked sub-section (2)(b) thereof and sought approval of its action by the competent authority. Industrial Tribunal has, however, in the proceeding under Section 33(2) (b)of the Act rejected the application for approval of the order of punishment. Respondent-company has moved this Court under Article 226 of the Constitution of India. Pending the writ petition, in Miscellaneous Petition No. 1685 of 1995 the Court has stayed all further proceedings in pursuance of the said order of the Labour Court.
2. Learned Counsel for the appellant, Mr. G. Vidyasagar, has questioned the legality of the above order on more than one ground and has contended that the impugned order has the effect of implementing the order passed by the respondent-Company to remove the appellant-workman from service which order could not/cannot be implemented unless approved by the competent authority. He has submitted that there is no further proceeding after the order of the Labour Court Industrial Tribunal except the consequence that the order removing the appellant has to be kept in abeyance and contract of service of the appellant is not interfered with by the respondent-Company. Learned Counsel has further submitted that in 10 case this Court has found that action to remove the appellant from service should be allowed to be implemented pending disposal of the writ petition, it should have taken notice of Section 17-B of the Act and directed the respondent- 15 Company to pay to the appellant emoluments as contemplated therein.
3. Learned Counsel for the respondent-Company, Mr. Ramesh Ranganathan, with his 20 usual vehemence and alertness, however, has contested the above contentions and submitted that by entertaining the writ petition this Court has, primafacie, accepted that the Labour Court Industrial Tribunal, on the facts of the case, has erred in not approving the action of the management and has rightly stayed further proceedings, which in no case, however, is one for either reinstatement of the appellant-workman or for his continuance in service in the sense of keeping the contract of service alive and the appellant accordingly entitled to the benefits thereof.
4. We have noted the contentions of the parties, but for the order that we propose to make in the instant proceeding, we do not think any detailed examination of either the facts of the case or the law on the subject is necessary. All that we are required to see, however, in the instant case is the provision in Section 33(2)(b) of the Act, which states, inter alia, -
"33(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) xxxx xxxx xxxx
b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, the 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."
5. The expression 'such proceeding' is referable to the proceeding as envisaged under Section 33(1) i.e., (1) any conciliation proceeding before a Conciliation Officer or a Board, (2) any proceeding before an Arbitrator or a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute. 'Any misconduct not connected with the dispute' in clause (b) above is referable to clause (b) in sub-section (1) of Section 33, wherein it is said :
"for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workman concerned in such dispute, save with the express permission in writing of the authority before which the proceeding is pending."
6. Respondent-company accordingly sought the approval of the authority before which, it is conceded, an industrial dispute is pending, as, without its approval, it cannot discharge or punish whether by dismissal or otherwise the appellant-workman. The competent authority has not granted the approval and thus as provided under sub-section (1) of Section 33 the employer i.e., respondent-Company is not entitled to alter to the prejudice of the appellant his conditions of service or to discharge or dismiss him from service. There is no effective order or dismissal thus in force against the appellant and the appellant's conditions of service are not interfered with in accordance with law. The appellant for the said reason continues in service and is entitled to all the benefits which go with his service. Section 17-B of the Act prescribes, inter alia, that in case there is an award of reinstatement of any workman and the employer prefers any proceedings against such award in a High Court or the Supreme Court, the employer shall be liable to pay such workman during the period of pendency of such proceedings in the High Court or the Supreme Court full wages last drawn by him inclusive of maintenance allowance admissible to him under any rule, if the workman had not been employed in any establishment during such period and an affidavit by such workman had been filed to that effect in such Court. Employer's liability to pay to the workman in whose favour reinstatement is ordered, is one that the Court invariably applies and the employer is asked to pay such wages as are worked out in terms of Section 17-B of the Act to the employee pending proceeding against the award in the Court. If the employer i.e., respondent-Company has come forward with the case that it has already removed the appellant-workman, since the removal was subject to the express permission in writing of the competent authority and the competent authority has declined to accord the necessary permission, the employer i.e., respondent-Company is under a clear obligation of law to reinstate the appellant in its service. Its attempt to keep off the consequences of the refusal of the permission by the competent authority is one which has interfered with the service conditions of the appellant herein without permission of the competent authority. It will be a fair approach if the award of reinstatement of any workman as contemplated under Section 17-B of the Act is not confined to an award in an industrial dispute for which a referene is made under Section 10 of the Act only and full potential of the expression 'award' as defined under Section 2(b) of the Act is applied to it. 'Award', as defined, includes an interim or a final determination of any industrial dispute or of any question relating thereto by any Labour Court, Industrial Tribunal or National Industrial Tribunal including an arbitration award made under Section 10-A. 'Industrial Dispute' is defined under the Act to mean 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 33 of the Act, we have already seen, permits imposition of punishment upon an employee for any misconduct connected with the dispute i.e., industrial dispute, but with the approval of the authority before which the proceeding is pending. Respondent-company has decided to punish the appellant by dismissal from service and accordingly it applied for the approval of the competent authority. The order made by the competent authority is one in respect of an industrial dispute and obviously falls within the definition of 'award'.
7. The view that we have taken has the support of an authority of equal status in the judgment of the Calcutta, High Court in Bata India Ltd. v. Seventh I. T., (1995-I-LLJ-144). The Calcutta High Court has taken the view -
At P 147 (Para 11) "If a liberal interpretation is given to Section 17-B for the purpose of giving effect to the beneficial object which it seeks to achieve, there will be no difficulty in extending the benefit of the said Section even in such a case where the employer challenges an order passed by the Tribunal disapproving an order of dismissal under Section 33(2)(b) of the Industrial Disputes Act, before the High Court or the Supreme Court."
and accordingly concluded -
(Para 14) "The decision of the Industrial Tribunal under Section 33(2)(b) of the Industrial Disputes Act disapproving the order of dismissal is certainly a matter relating to employment or non-employment of the workman and is certainly a determination by the Tribunal in respect there to. Such decision is certainly a determination that the dismissal in question is invalid and therefore, cannot be approved. There is no reason, therefore, as to why in giving a liberal interpretation to the provisions of Section 17-B of the said Act, such a decision of the Industrial Tribunal under Section 33(2)(b) of the said Act cannot be termed as an award within the meaning of Section 17-B of the said Act."
8. Apart from the above, the Supreme Court in P. D. Sharma v. State Bank of India (1969-I-LLJ-513) has held that if the approval under Section 33(2)(b) is not accorded, the action taken by the employer becomes ab initio void and the employee continues in service and his condition of service will also continue without any break as if the order in question had not been made at all.
9. We have only echoed this view when we have held earlier that without approval of the competent authority the contract of service of the appellant-workman is not determined. The appellant continues in service and thus entitled to all the benefits of the service. Even before Section 17-B was introduced in the Statute, Court in their discretion awarded wages to workmen when they felt such a discretion is necessary. In case where the order imposing punishment is ab initio void, can the Court say it shall leave the workman without any emoluments and at the mercy of the employer. Under the scheme of our Constitution when rights of an employee and protections extended to the conditions of service by the Statutes are guarded under Article 21 of the Constitution of India, and it is seen by the Court that the determination of the contract of service has not been reached in accordance with the prescribed procedure of law, it will be rather going against the Constitution of India if statutory protections are ignored and employee is left at the mercy of the employer. is
10. For the reasons aforementioned, we are inclined to interfere with the order of the learned single Judge and to order instead that the respondent-Company shall forthwith pay to the appellant herein all arrears of wages including allowances, if any, as if he is continuing in service and thus has earned all the benefits attached to the post held by him and continue paying regularly without fail. The respondent-Company is directed to pay all the arrears of wages including allowances as ordered above, to the appellant herein within one month, failing which Writ Petition No. 1379 of 1995 shall stand dismissed without further reference to the Bench. It is ordered further that the respondent-Company shall continue paying to the appellant herein wages each month without fail; non-payment of wages in any month shall result in the dismissal of the writ petition. Observations, if any, which directly or indirectly appear to touch the merit of the writ petition, however, shall not be taken into account in deciding the writ petition finally.
11. In the result, the appeal is allowed, the order of the learned Single Judge, dated July 17, 1995, is set aside.