Madras High Court
Pandian Roadways Corporation Ltd., ... vs Presiding Officer, Industrial ... on 21 December, 2004
Equivalent citations: (2005)IILLJ38MAD, (2005)1MLJ346
Author: P.D. Dinakaran
Bench: P.D. Dinakaran, S.R. Singharavelu
JUDGMENT P.D. Dinakaran, J.
1. The issue that arises for our consideration in the above writ appeal is:
"When an application is made by the employer for approving the order of termination by the authority before whom industrial dispute is pending, can such authority go into the questions of victimisation and irregularities imputed on the employee while passing appropriate orders on the application, while exercising the powers conferred under Section 33(2)(b) of the Industrial Disputes Act (hereinafter referred to as The Act') and what would be the consequence of the orders passed by such authority either by approving or refusing to approve the order of termination made by the employer?"
2. The appellant/employer (hereinafter referred to as 'employer') has made a challenge in W.P. No. 16133 of 1994 to the order of Industrial Tribunal dated July 28, 1993 made in Approval Petition No. 24 of 1991 declining to grant approval for termination of the employment of the second respondent/ workman (hereinafter referred to as 'workman'), as the said approval was sought by way of an application under Section 33(2)(b) of the Act, as an Industrial Dispute between the employer and the workman was pending at that time, before the Industrial Tribunal.
3. The Industrial Tribunal, re-appreciating the evidence that weighed the employer, came to the conclusion that the workman had been victimized and that the order of termination terminating the workman violates the principles of natural justice for the reason that the impugned enquiry was conducted by a subordinate to the complainant especially when the superior officer is also a witness in the case against the workmen.
4. Aggrieved by the same, the employer filed W.P.No. 16133 of 1994 seeking to quash the order of the Industrial Tribunal dated July 28, 1993 declining to approve the order of termination under Section 33(2)(b) of the Act and contending that the Tribunal has exceeded its jurisdiction while re-appreciating the evidence that weighed the employer for passing the order of termination and the same is not permissible within the scope and ambit of Section 33(2)(b) of the Act.
5. Per contra, the workman resisted the writ petition on the ground that there is no legal evidence to support the allegation made against the workman and therefore, while approving the order of termination, exercising the power conferred under Section 33(2)(b) of the Act, the Tribunal was well within its jurisdiction to go into the fact whether the order of termination is warranted in the facts and circumstances of the case and whether the same is justified or amounts to victimisation or unfair labour practice. In any event, it is contended that two views are possible one which favours the workman has to be given due weightage.
6. Learned single Judge in his order dated November 13, 1997, appreciating the contentions advanced on behalf of the employer, dismissed the writ petition. Hence, the above appeal at the instance of the employer.
7. Heard Mr. J.Om Prakash, learned counsel appearing for the appellant and Mr. R. Aneffer Alwyn, learned counsel appearing for the second respondent. Both the counsel submitted the submission made on behalf of the respective parties before the learned single Judge.
8. Upon the rival contentions, the issue that arise for our consideration is:
"When an application is made by the employer for approving the order of termination by the authority before whom industrial dispute is pending, can such authority go into the questions of victimisation and irregularities impugned on the employees while passing appropriate orders on the application, while exercising the powers conferred under Section 33(2)(b) of the Industrial Disputes Act (hereinafter referred to as 'The Act') and what would be the consequence of the orders passed by such authority either by approving or refusing to approve the order of termination made by the employer?"
9. Issue: It is true that the Apex Court in Lord Krishna Textile Mills v. Its Workman interpreting the jurisdiction of the Tribunal in considering the questions made under Section 33(2)(b) of the Act held as follows:
"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). 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 has held a proper domestic enquiry and has proceeded to pass the impugned 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. The approving authority has to consider only (a) whether the standing orders justify the order of dismissal, (b) whether an enquiry has been held as provided by the standing order, (c) whether the wages for the month have been paid as required by the proviso, and (d) whether an application has been made as prescribed by the proviso. And when all these conditions have been fulfilled by the employer the Tribunal is not justified in refusing to accord approval to the action taken by the employer. Nor is it justified while holding the enquiry to assume powers of an appellate Court which alone is entitled to go into all questions of act. The question about the adequacy of evidence or its sufficiency or satisfactory character can be raised in a Court of facts and may fail to be considered by an appellate Court which is entitled to consider facts; but these considerations are irrelevant where the jurisdiction of the Court is limited as under Section 33(2)(b). And if the Tribunal assumes jurisdiction not vested in it by law, and consequently refuses to accord approval to the action taken by the employer its order is patently erroneous in law.
[Italics supplied]"
10. Referring to the ratio laid down in Lord Krishna Textile Mills v. Its Workman (supra) and citing the law laid down in Kalyani P.M. v. Air France, Calcutta and Central Bank of India Limited, New Delhi v. Prakash Chand Jain , the Apex Court in Lalla Ram v. Mgmt. of D.C.M. Chemical Works Limited , framed five propositions with reference to the jurisdiction of the Tribunal under Section 33(2)(b) of the Act.
11. In Kalyani P.H. v. Air France, Calcutta (supra), the Bench of five Judges speaking as follows 1963-I-LLJ-679 at p. 683:
"..... If the enquiry is not defective, the Labour Court has only to see whether there was a prima facie case for dismissal, and whether the employer had come to the bona fide conclusion that the employee was guilty of misconduct. Thereafter, on coming to the conclusion that the employer had bona fide come to the conclusion that the employee was guilty, i. e., there was no unfair labour practice and no victimisation, the Labour Court would grant the approval which would relate back to the date from which the employer had ordered the dismissal. If the enquiry is defective for any reason, the Labour Court would also have to consider for itself on the evidence adduced before it whether the dismissal was justified. However, on coming to the conclusion on its own appraisal of evidence adduced before it that the dismissal was justified, its approval of the order of dismissal made by the employer in a defective enquiry would still relate back to the date when the order was made...... "
(Italics supplied)
12. In Central Bank of India Limited, New Delhi v. Prakash Chand Jain (supra) the Apex Court held as follows 1969-II-LLJ-377 at p. 380:
"These decisions of this Court made it clear that when an Industrial Tribunal is asked to give its approval to an order of dismissal under Section 33(2)(b) of the Act, it can disregard the findings given by the enquiry officer only if the findings are perverse. The test for perversity that is indicated in these cases is that the findings may not be supported by any legal evidence at all... A finding by a domestic Tribunal like an enquiry officer can be held to be perverse in these cases also where the finding arrived at by the domestic Tribunal is one at which no reasonable person could have arrived on the material before it."
(Italics supplied)
13. Following the ratio laid down in Kalyani P.H. v. Air France, Calcutta (supra), Central Bank of India Limited, New Delhi v. Prakash Chand Jain (supra), and other catena of decisions, namely, Bengal Bhatdee Coal Company v. Ram Prabesh Singh AIR 1964 SC 486 : 1963-I-LLJ-291; Titaghur Paper Mills Company Limited v. Ram Naresh Kumar, 1961-I-LLJ-511 (SC), Hind Construction and Engineering Company Limited v. Their Workmen, , Workmen of Firestone Tyre and Rubber Company of India (P) Limited v. Management and Ors., and Eastern Electric and Trading Company v. Baldev Lal , the Apex Court framed five broad propositions with respect to the jurisdiction of the Tribunal under Section 33(2)(b) of the Act in Lalla Ram v. D.C.M. Chemical Works Limited (supra) which reads as follows 1978-I-LLJ-507 at p. 513:
"13. 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 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 victimize the employee regard being had to the position settled by the decisions of this Court in Bengal Bhatdee Coal Company v. Ram Prabesh Singh AIR 1964 SC 485 : 1963-I-LLJ-291; Titaghur Paper Mills Company Limited v. Ram Naresh Kumar, 1961-I-LLJ- 511 (SC), Hind Construction and Engineering Company Limited v. Their Workmen, , Workmen of Firestone Tyre and Rubber Company of India (P) Limited v. Management and Ors., and Eastern Electric and Trading Company v. Baldev Lal 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 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."
[Italics supplied]
14. Again in a recent decision in Jaipur Zila Sahakari Bhoomi Vikas Bank Limited v. Ram Gopal Sharma, , the Constitution Bench of Apex Court interpreting the jurisdiction of the Tribunal with reference to the powers conferred under Section 33(2)(b) of the Act and the consequence of such order passed by the Industrial Tribunal under Section 33(2)(b) of the Act, held as follows at pp. 839 & 840 of LLJ:
"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 31(1) with imprisonment for a term which may extend to six months or with fine which may extend to Rs. 1,000 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 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.
14. Where an application is made under Section 33(2)(b) proviso, the authority before which the proceeding is pending for approval of the action taken by the employer has to examine whether the order of dismissal or discharge is bonafide; whether it was by way of victimization or unfair labour practice; whether the conditions contained in the proviso were complied with or not etc. If the authority refuses to grant approval obviously it follows that the employee continues to be in service as if the order of discharge or dismissal never had been passed. The order of dismissal or discharge passed invoking Section 33(2)(b) dismissing or discharging an employee brings an end of relationship of the employer and employee from the date of his dismissal or discharge but that order remains incomplete and remains inchoate as it is subject to approval of the authority under the said provision. In other words, this relationship comes to an end de jure only when the authority grants approval. If approval is not given, nothing more is required to be done by the employee, as it will have to be deemed that the order of discharge or dismissal had never been passed. Consequence of it is that the employee is deemed to have continued in service entitling him to all the benefits available. This being the position there is no need of a separate or specific order for his reinstatement."
(Italics supplied)
15. It is therefore, a settled law that while an order of termination is sent for approval to the authorities concerned under Section 33(2)(b) of the Act, the authority concerned, before whom Industrial Dispute is pending at that time, is expected to (sic) afford protection to the workman to safeguard his interest and to shield against the victimisation and unfair labour practice by the employer during the pendency of the Industrial Dispute, particularly when the relationship between them is already strained as intended by the Legislature or Parliament under Section 33(2)(b) of the Act and therefore, the authority concerned shall necessarily examine whether the order of dismissal or discharge was bona fide; whether it was by way of victimisation and unfair labour practice and whether the conditions contained in the proviso were complied with or not etc. In other words, the mere compliance of the conditions imposed under the provisions of Section 33(2)(b) of the Act is not suffice for grant of approval of the order of termination requested by the employer.
16. The Tribunal thus necessarily has to go to into the questions: (i) whether the order of dismissal or discharge was bona fide; (ii) whether it was by way of victimisation and unfair labour practice and (iii) whether the conditions contained in the proviso were complied with or not? In the instant case, the' Industrial Tribunal while going into the above question, came to the conclusion that the order of termination for which approval was sought by the employer lacks legal evidence, suffers perversity, also violates principles of natural justice and thereby attracts the victimisation and unfair labour practice, as rightly observed by the learned single Judge.
17. The Act in question is a beneficent legislation which is enacted for the purpose of improving the conditions of service of the employees and hence even if it is possible to have two opinions on the construction of the provisions of the Act the one which advances the object of the Act and is in favour of the employees for whose benefit the Act is passed has to be accepted.
18. The learned single Judge, therefore rightly dismissed the writ petition confirming the order of the Tribunal dated July 28, 1993 declining the approval for termination of the workman, holding that the proposal for termination of the workman suffers for victimisation, unfair labour practice as well as violation of principles of natural justice.
19. Once, the order of the Tribunal declining the approval is held valid, nothing more is required to be done by the workman, as it would have to be deemed that the order of dismissal or discharge had never been passed and consequence of it is that the employee is deemed to have continued in service entitling him to all the benefits available and therefore, there is no need of a separate or specific order for reinstatement or back wages, as the case may be, as held by the Apex Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Limited v. Ram Gopal Sharma (supra). Hence, in view of the order of the Tribunal dated July 28, 1993 made in Approval Petition No. 24 of 1991, as confirmed in the writ petition dated November 13, 1997 in W.P. No. 16133 of 1994 and by us in the above writ appeal, the second respondent/workman is entitled for all consequential benefits as per law.
20. In the circumstances, finding no reason to interfere with the order passed by the learned single Judge-dated November 13, 1997 in W.P. No. 16133 of 1994, the writ appeal stands dismissed with the above observation. No costs.