Madras High Court
Balasundaram P. And Ors. vs Presiding Officer, Labour Court And ... on 5 August, 2003
Equivalent citations: (2004)IILLJ910MAD
Author: D. Murugesan
Bench: D. Murugesan
ORDER D. Murugesan, J.
1. Writ Petition No. 8389 of 1995 has been filed by 18 employees of the second respondent-management. While the writ petition was pending, petitioners 15 and 16 expired. Hence, the legal representatives of the petitioners 15 and 16 were impleaded as respondents 19 to 24 in the writ petition.
2. Following are the few facts which have led to the filing of the above writ petition. The petitioners and some other workers joined as members in a new trade union by name Tamil Nadu Textile Workers Union affiliated to Bharathiya Mazdoor Sangh during September 1990. The second respondent management could not relish the same, threatened the workers and advised them not to continue as members of the said union. During September 1990, the second respondent management held negotiations with the rival unions without notice to the petitioners' union. Hence, by letter, dated September 13, 1990, the union requested the second respondent management to permit the members of the union also to participate in the negotiations. The members consisted 57 in number. Without conceding the said request, an agreement was entered into by the management with the other trade unions. The petitioners' union protested the said agreement in their letter, dated November 5, 1990. In the above background, the petitioners were issued with individual letters for their absence form duty on November 8, 1990 and were placed under suspension pending enquiry. Out of 57 workers suspended, 36 workers apologised and no action was taken against them. The remaining 21 workers were chargesheeted and 3 of them were taken back into service after they tendered apology leaving the 18 workers, viz., the petitioners, who did not apologise. All the petitioners were finally dismissed from service on May 13, 1991. Individual disputes were raised and the Labour Court ultimately found that the charges were proved, but invoked Section 11-A of the Industrial Disputes Act and modified the orders of punishment of dismissal to punishment of discharge with payment of Rs. 50,000 to each of the petitioners towards compensation. Aggrieved by that portion of the award in denying reinstatement and directing only the payment of compensation, the petitioners have filed Writ Petition No. 83 89 of 1995 before this Court.
3. Aggrieved by the same award in respect of that portion of the order as to payment of compensation of Rs. 50,000 to each of the respondents, the petitioner-management has filed Writ Petition No. 10239 of 1995 before this Court.
4. Since the issues raised in both the writ petitions are one and the same, both the writ petitions are taken up together for hearing and disposal by this common order. For convenience, the parties in both the writ petitions are referred to as the "employees" and the "management" in this order.
5. Sri N.G.R. Prasad, learned counsel for the employees would challenge the award only on the limited question, viz., when the orders of dismissal were made on May 13, 1991, conciliation proceedings pending before the Labour Welfare Officer as to the notice of strike issued on March 14, 1981. Before the orders of dismissal were made, the management ought to have approached the Conciliation Officer for permission under Section 33(2)(b) of the Industrial Disputes Act (hereinafter referred to as the Act). This contention was rejected by the Labour Court on the ground that even in the absence of approval, dismissal could be made and the employees are only entitled to proceed against the management under Section 33-A of the Act. The learned counsel did not argue on any other point.
6. In reply to the above submissions, Sri N. Balasubramaniam, learned counsel appearing for the management submitted that the employees are not entitled to raise this question, as they have not raised the same before the Labour Court. Secondly, though notice of strike was given on March 14, 1991, no action was taken by the Conciliation Officer. Only when action is taken by issue of notice to parties, the conciliation shall be deemed to commence. Hence, it cannot be contended that conciliation proceedings were pending on the date of the strike notice and the orders of dismissal should precede the approval of the Conciliation Officer under Section 33(2)((b) of the Act.
7. As to the requirement to obtain approval when the dispute between the employees and the management in respect of matters not connected with the orders of dismissal is pending, the management, is mandated to file a petition under Section 33(2)(b) of the Act and obtain order of approval before orders of dismissal are made. Law on this point is well settled in view of the pronouncement of the Apex Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma and others 2002-I-LLJ-834. While considering such a requirement, the Apex Court observed as follows at p. 839:
"13. The proviso to Section 33(2)(b) as can be seen from its very unambiguous and clear language is mandatory. This apart, from the object of Section 33 and in the context of the proviso to Section 33(2)(b), it is obvious that the conditions contained in the said proviso are to be essentially complied with. Further, any employer who contravenes the provisions of Section 33 invites a punishment under Section 33(1) with imprisonment for a term which may extend to six months or with fine which may extend to Rs. 1000 or with both. This penal provision is again a pointer of the mandatory nature of the proviso to comply with the conditions stated therein. To put it in another way, the said conditions being mandatory, are to be satisfied if an order of discharge or dismissal passed under Section 33(2)(b) is to be operative. If an employer desires to take benefit of the said provision for passing an order of discharge or dismissal of an employee, he has also to take the burden of discharging the statutory obligation placed on him in the said proviso. Taking a contrary view that an order of discharge or dismissal passed by an employer in contravention of the mandatory conditions contained in the proviso does not render such an order inoperative or void, defeats the very purpose of the proviso and it becomes meaningless. It is well-settled rule of interpretation that no part of statute shall be construed as unnecessary or superfluous. The proviso cannot be diluted or disobeyed by an employer. He cannot disobey the mandatory provision and then say that the order of discharge or dismissal made in contravention of Section 33(2)(b) is not void or inoperative. He cannot be permitted to take advantage of his own wrong. The interpretation of statute must be such that it should advance the legislative intent and serve the purpose for which it is made rather than to frustrate it. The proviso to Section 33(2)(b) affords protection to a workman to safeguard his interest and it is a shield against victimization and unfair labour practice by the employer during the pendency of industrial dispute when the relationship between them is already strained. An employer cannot be permitted to use the provision of Section 33(2)(b) to ease out a workman without complying with the conditions contained in the said proviso for any alleged misconduct said to be unconnected with the already pending industrial dispute. The protection afforded to a workman under the said provision cannot be taken away. If it is to be held that an order of discharge or dismissal passed by the employer without complying with the requirements of the said proviso is not void or inoperative, the employer may with impunity discharge or dismiss a workman."
In view of the above settled proposition, the management is mandated to obtain approval for dismissal of the employees. However, Sri N. Balasubramaniam, learned counsel for the management, would contend that there was no dispute pending before the Conciliation Officer on the date of orders of dismissal and hence application of Section 33(2)(b) of the Act does not arise in this case. To find out as to whether conciliation was pending or not, it is relevant to refer to the dates with reference to certain facts. The notice of strike, dated March 14, 1991, was issued and a copy of the same was forwarded to the Conciliation Officer who also received the same. The service of the said notice on the conciliation officer is not in dispute. It is the contention of the learned counsel for management that unless the Conciliation Officer initiates action on the strike notice, it cannot be contended that conciliation proceedings are pending. In this context, reference could be made to Sections 20 and 22(1)(c) of the Act which relates to prohibition of strike as well as lockout before the date of expiry of strike specified in such notice. Section 20 relates to the commencement and conclusion of proceedings which reads as under:
"(1) A conciliation proceeding shall be deemed to have commenced on the date on which a notice of strike or lockout under Section 22 is received by the Conciliation Officer or on the date of the order referring the dispute to a Board, as the case may be.
(2) A conciliation proceeding shall be deemed to have concluded -
(a) where a settlement is arrived at, when a memorandum of the settlement is signed by the parties to the dispute;
(b) where no settlement is arrived at, when the resort of the Conciliation Officer is received by the appropriate Government or when the report of the Board is published under Section 17, as the case may be; or
(c) when a reference is made to a Court, Labour Court, Tribunal or National Tribunal under Section 10 during the pendency of conciliation proceedings.
(3) Proceedings before an arbitrator under Section 10-A or before a Labour Court, Tribunal or National Tribunal shall be deemed to have commenced on the date of the reference of the dispute for arbitration or adjudication, as the case may be, and such proceedings shall be deemed to have concluded on the date on which the award becomes enforceable under Section 17-A."
Sub-section (1) of Section 20 is clear and unambiguous in its terms that the conciliation proceedings shall be deemed to have commenced on the date on which a notice of strike under Section 22 is received by the Conciliation Officer. The said Section does not contemplate that invitation of conciliation proceedings by the Conciliation Officer as a pre-condition for a petition for approval under Section 33(2)(b) of the Act. The moment the strike notice was issued under Section 22 of the Act and the same was received by the Conciliation Officer, the conciliation proceedings should be deemed to have commenced and the same are deemed to be pending and in such event, there is no escape for the management from the provisions of Section 33(2)(b) of the Act. Even in cases where interpretation of any provision is required to be made by the Courts, it must be such that it must advance the legislative intent and serve the purpose for which it is made rather than to frustrate it. Question of different interpretation does not arise when the language employed in the Section is unambiguous, explicit and clear in its terms indicating the intention of the Legislature. The provision of law must be interpreted only in the way the language is employed and to give true and correct meaning of the provisions. Any interpretation depriving the entitlement of employees as to the benefit of the provision would be meaningless. The learned counsel for management further relied upon a judgment of the Apex Court in "Lokmat Newspapers (Private) Ltd. v. Shankarprasad , in support of submissions that unless the Conciliation Officer commenced the proceedings, question of pendency of conciliation proceedings does not arise. That case relates to the questions to when the conciliation proceedings concluded. In that context only the Apex Court has held that till such time the failure report of the Conciliation Officer reaches the appropriate Government, the conciliation proceedings cannot be said to have concluded and must be considered as only pending. In so far as the commencement of the conciliation proceedings the Court has held that a mere look at the aforesaid provisions shows that in cases of public utility services referred to in Section 22(2) of the Industrial Disputes Act the conciliation proceedings shall be deemed to have commenced on the date on I which a notice of strike or lockout under Section 22 is received by the Conciliation Officer. That deals with commencement of mandatory conciliation proceedings as laid down by Section 12(1) read with Section 20(1)." The above finding of the Apex Court supports the case of the employees.
8. The further submission of the learned counsel for management was that the employees are not entitled to raise this question for the first time in the writ petition. In this context, it must be seen that at page 4 of the award of the Labour Court, a reference is made to the objection raised by the employees as to the orders of dismissal without approval from the Conciliation Officer as conciliation was already pending on a strike notice issued by the employees. The said objection was also opposed by the management and the reference to the same is made by the Labour Court in Para. 3, at page 9 of the award. It is the specific case of the management that the question of compliance of the provisions of Section 33(2)(b) of the Act did not arise as there was no conciliation proceedings pending on the date of orders of dismissal and even in case if the provision was not complied with by obtaining approval, the only remedy available to the employees was to file a complaint under Section 33-A of the Act and on that account, orders of dismissal cannot be set aside. While considering the above, in Para. 29, at page 44 of award the Labour Court had in fact found that in the case of non-compliance of Section 33(2)(b), the only remedy open to the employees was to lodge a complaint under Section 33-A of the Act. The said finding of the Labour Court is opposed to the law laid down by the Apex Court in Jaipur Zila Sahakari Bhoomi Vikas Bank case (supra), where the Apex Court also considered the provisions of Section 33-A of the Act. Section 33-A of the Act is available only to an employee and is intended to save his time inasmuch as he can straight away make a complaint before the very authority when the dispute is already pending between the parties. The said provision only enables the employee to make a complaint if he so desires as to the contravention of Section 33 by the employer during the pendency of the proceedings either before the Conciliation Officer, Board, Arbitrator, Labour Court, the Tribunal or the National Tribunal. By the said provision the Legislature has never intended anything contra entitling the management/ employer to by pass the provisions of Section 33 to plead that the remedy of the employee is only to lodge a complaint under Section 33-A in case of non-compliance of Section 33. While interpretations are sought to be made to the provisions of the Act, the same should be made only to give the real meaning and the purport of the provisions. When Section 33 specifically mandates the employer to seek prior permission under Section 33(1) or to seek an approval under Section 33(2)(b), merely because the enabling provision of Section 33-A entitling the employees to lodge a complaint for non-compliance of the provisions of Section 33, the protection accorded to the employees under Section 33 for imposing the punishment of dismissal or otherwise of the workmen when the dispute before the Conciliation Officer cannot be taken away and the right for approval as a precondition for dismissal or discharge could be deprived. When once this position of law is accepted and factually such objection was raised by the employees and the same was rejected only on the ground that the employees have to approach the very Conciliation Officer I under Section 33-A by making a complaint, I find no merit in the submissions of the learned counsel for management in this regard. The finding of the Labour Court that is contrary to the law laid down by the Apex Court cannot be sustained.
9. Once this Court comes to the conclusion that the orders of dismissal were made without any approval under Section 33(2)(b) of the Act, the award of the Labour Court in directing the discharge of the employees with compensation only cannot be sustained. Accordingly, the award of the Labour Court is set aside in so far as it directs the discharge of the employees only with payment of compensation of Rs. 50,000 to each of them instead of ordering reinstatement for want of approval. Accordingly, W.P. No. 8389 of 1995 is allowed and all the petitioners except petitioners 15 and 16 are entitled to reinstatement into service with back wages and continuity of service. The substituted petitioners viz., petitioners 19 to 24 being the legal representatives of the petitioners 15 and 16 are entitled to the monetary benefits to which the petitioners 15 and 16 are eligible from the date of dismissal till the date of their death.
10. In view of the above order, W.P. No. 10239 of 1995 is dismissed as the challenge in the said writ petition relates to the award (sic) of Rs. 50,000 as compensation to the employees. There will be no order as to costs in both the writ petitions.