IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:08.06.2009 CORAM: THE HON'BLE MR. JUSTICE P.JYOTHIMANI WRIT PETITION NO.18954 OF 2008 AND CONNECTED MISCELLANEOUS PETITIONS. The Management of Bharathan Publication (P) Ltd., Kalki Buildings 47 N.P.Jawaharlal Nehru Salai Ekkatuthangal, Chennai 600 032 rep. By its Managing Director. .. Petitioner vs. 1. The Labour Officer III Kuralagam, Chennai 600 108. 2. Bharathiyar Employees' Mazdoor Sangh (Reg.No.M.D.S/1720) 2/6 Rangasayee Street Perambur, Chennai rep. By its Branch President Mr.S.Thangappan. .. Respondent Writ petition filed under Article 226 of the Constitution of India praying for issuance of Writ of Certiorari calling for the records of the 1st respondent in proceedings No.A.572/07 dt.20.12.2007 and quash the same. For petitioner : Mr.S.Ravindran for M/s.T.S.Gopalan & Co., For respondents : Mr.S.Vaidhyanathan for R.2 .. ORDER The writ petition is directed against the order passed by the first respondent/Labour Officer in A/572/2007 dated 20.12.2007, under which the first respondent has ordered that the dismissal of one G.Karunakaran, Working President of the second respondent Union is opposed to section 33(1)(b) of the Industrial Disputes Act, 1947, (in short, "the Act") since the conciliation proceedings in respect of the dispute are pending and the dismissal has been ordered without approval from the Conciliation Officer. 2. The writ petitioner is a publisher of various magazines https://hcservices.ecourts.gov.in/hcservices/ and one G.Karunakaran, working as Assistant Printer, was said to have been involved in the charge of misconduct, in respect of which a charge sheet was issued on 9.9.2006 and he was kept under suspension pending enquiry. It is stated that on 14.9.2006, the second respondent Union has raised an industrial dispute regarding retrenchment, lock out, etc., including that of suspension of G.Karunakaran and that dispute was numbered as A/514/2006 by the first respondent. 2(a). The first respondent issued notice on 15.9.2006 for enquiry which was posted on 21.9.2006, 4.10.2006 and 18.10.2006. On 18.11.2006, the petitioner submitted a reply to the effect that the petitioner is not proposing to indulge in retrenchment or lock out and that G.Karunakaran has been suspended pending disciplinary proceedings and therefore, the dispute is not maintainable. While the enquiry was posted on 22.2.2007, the second respondent approached this Court by filing W.P.No.38315 of 2006 against the disciplinary action initiated against G.Karunakaran and also filed W.P.No.41190 of 2006 challenging the charge sheet-cum-suspension order dated 9.9.2006 and both the writ petitions were dismissed on 3.4.2007 on the basis that the second respondent raised a dispute and hence, the alternative remedy was resorted to. 2(b). It is the case of the petitioner that against the said G.Karunakaran, enquiry was conducted and a second show-cause notice dated 06.04.2007 was issued, proposing to dismiss him from service, for which there was no reply and therefore, by order dated 22.4.2007, the said G.Karunakaran was dismissed from service. It is the case of the petitioner that even though the first respondent issued various notices, no conciliation proceedings have been initiated as per section 12 of the Industrial Disputes Act,1947. On the memorandum filed by the second respondent on 4.6.2007 questioning the dismissal of the said G.Karunakaran from service without prior approval, particularly when the dispute stood posted by the first respondent for enquiry on various dates, the petitioner replied stating that no conciliation proceedings were pending when G.Karunakaran was dismissed on 22.4.2007. 2(c). Thereafter, the first respondent took up an application regarding non-employment of G.Karunakaran and the petitioner participated in the enquiry on 7.9.2007. That was also in case No.A/514/2006 and the enquiry was subsequently adjourned to 17.9.2007 and there were no further proceedings. It is stated that in the meantime, the second respondent raised two more disputes and the same were numbered as 591/2006 and 810/2006 and according to the petitioner, they were not taken up by the first respondent for conciliation. 2(d). It is the case of the petitioner that in case of non- public utility service like that of the petitioner, notices are issued for enquiry inviting parties to attend to verify the records https://hcservices.ecourts.gov.in/hcservices/ and when notices are issued for conciliation proceedings within the meaning of section 12 of the Act, the Conciliation Officer is bound to submit his report and the first respondent has not submitted any such conciliation failure report. 2(e). Even though the first respondent in A/572/07 called for the discussion in respect of dismissal of G.Karunakaran during the pendency of dispute in A/514/06, the petitioner was unable to attend by oversight and ultimately, the first respondent passed the impugned order and after the impugned order was passed, the workman G.Karunakaran filed C.P.No.44/08 on the basis that the termination was in violation of section 33-A of the Industrial Disputes Act and he was entitled for the balance of subsistence allowance and wages for the period from October,2006 to January,2008 to the extent of Rs.1,21,457/-. It was only after receipt of claim petition in May, 2008, the petitioner was able to peruse the impugned order of the first respondent dated 20.12.2007. 3. The impugned proceedings of the first respondent are challenged by the petitioner on various grounds including that there were no conciliation proceedings pending within the meaning of section 12 of the Industrial Disputes Act and in such circumstances, there was no necessity for the petitioner to obtain prior permission for dismissing G.Karunakaran, since the petitioner being a non-public utlity service, the discussion held in A.No.514/2006 would not amount to conciliation proceedings in the eye of law and it is only an enquiry. 4. In the counter affidavit filed by the second respondent it is reiterated that the union raised dispute on 14.9.2006, which was taken up as A/514/2006 by the Conciliation Officer at Kuralagam, Chennai and when the conciliation proceedings were actually pending, W.P.Nos.38351 of 2006 and 41190 of 2006 came to be dismissed for the reason that the second respondent availed the alternative remedy and in the order, the learned Judge has also explained the conciliation proceedings bearing No.A/514/06. After the W.A.Nos.703 and 704 of 2007 filed against the above said order were dismissed on the ground of alternative remedy, the petitioner dismissed the said G.Karunakaran from service without obtaining prior permission as contemplated under section 33 of the Industrial Disputes Act, since the conciliation proceedings were pending before the first respondent at that time. It is also stated that the management itself admitted that A/514/2006 are conciliation proceedings and on 17.9.2007, the second respondent gave a letter to the first respondent to convert the dispute under section 2(k) of the Industrial Disputes Act into one under section 2A of the Industrial Disputes Act and thereafter, A/514/2006 was renumbered as A/620/2007 and the conciliation failure report was submitted on 30.10.2007. Even if the proceedings under section 2(k) of the Industrial Disputes Act were not converted into one under section 2A of the Industrial Disputes Act, the conciliation proceedings were still pending on the date of dismissal of G.Karunakaran, in https://hcservices.ecourts.gov.in/hcservices/ case the Conciliation Officer has no power to effect such conversion. On the other hand, if such conversion has been made, the failure report has been submitted on 30.7.2007. 5. Mr.S.Ravindran for M/s.T.S.Gopalan & Co, learned counsel appearing for the petitioner by referring to section 12 of the Industrial Disputes Act would submit that only in respect of public utility services, the method is prescribed and therefore, in the case of non-public utility service, there is no method for conciliation with the result the notices sent by the first respondent for enquiry cannot be deemed to have been sent pursuant to the conciliation proceedings. He would also submit that the first respondent has never treated the proceedings as conciliation proceedings and even otherwise, he has no authority to decide the validity or otherwise of the dismissal since in the eye of law there is no conciliation. He would also rely upon the judgment reported in Management Essorpe Mills Ltd., vs. Presiding Officer, Labour Court and others [2008(2) LLN 761]. His submission is that conciliation in any proceedings must be as per section 2(c) of the Industrial Disputes Act. Even assuming that the conciliation started in A/514/2006, there is no conciliation failure report. 6. On the other hand, it is the contention of Mr.S.Vaidhyanathan, learned counsel appearing for the second respondent that in the absence of a precise definition for the term 'conciliation' in respect of non-public utility service, the notices issued by the first respondent should be treated as having been sent for conciliation proceedings and the argument that such enquiry cannot be deemed to be conciliation proceedings is only technical which cannot take away the substantive right of a workman under the Industrial Disputes Act, which is a beneficial legislation. He would also rely upon the judgment in V.Palanishanmugavel and others vs. The General Manger, Tamil Nadu State Transport Corporation (Madurai) Ltd., Tirunelveli and others [2007 (4) CTC 478] to substantiate his contention apart from the judgment in The Correspondent, Sacred Heart Primary School, Kamaraj Nagar, Padanthalumoodu, Kanyakumari District and another vs. The District Elementary Educational Officer, Kanyakumari District at Nagercoil, Kanyakumari and others [2006 (4) CTC 34]. 7. The admitted facts are that the petitioner is a non-public utility service and the second respondent Union has raised some dispute before the first respondent on 14.9.2006 under section 2(k) of the Industrial Disputes Act, 1947. The crux of the said dispute raised by the second respondent as stated above is that the petitioner is attempting to close the unit and the said G.Karunakaran was placed under suspension illegally on 9.9.2006 with an intention to terminate him from service. In the said petition under section 2(k) of the Industrial Disputes Act, the second respondent has requested the first respondent to give direction to the petitioner not to retrench workmen, not to close down the factory without prior approval from the Government and to https://hcservices.ecourts.gov.in/hcservices/ declare that the suspension against G.Karunakaran is null and void and to set aside the same and also requested the first respondent to conduct enquiry and pass appropriate orders at the earliest point of time. 8. The respondents therein have given reply denying various allegations wherein it is stated that enquiry officer was appointed in the matter of Karunakaran but the said Karunakaran did not co- operate and therefore requested to reject the application. Based on the said complaint, the first respondent has issued notices for enquiry in A.No.514/06 and in all enquiry notices, it is true, the first respondent has chosen to state it as 'enquiry' (tprhuiz) and not 'conciliation' (rkurk; ). Up to the date of order passed by this Court on 3.4.2007 in W.P.Nos.38315/06 and 41190/06, it is seen that the first respondent has referred the said proceedings in A.514/06 as enquiry. W.P.No.38315 of 2006 was filed by the second respondent Union against the disciplinary proceedings initiated against G.Karunakaran and the subsequent W.P.No.41190 of 2006 was filed challenging the order of petitioner dated 9.9.2006 placing the said G.Karunakaran under suspension. Both the writ petitions were dismissed on 3.4.2007 holding that the second respondent has already filed application under section 2(k) of the Industrial Disputes Act and hence, resorted to alternative remedy. 9. At this juncture, it is relevant to point out that the said G.Karunakaran was placed under suspension on 9.9.2006 and charge memo was issued against him on the same day. Ultimately, the petition under section 2(k) of the Industrial Disputes Act as stated above, was filed by the second respondent Union on 14.9.2006. The said G.Karunakaran was dismissed on 22.4.2007 viz., after the dismissal of writ petitions on 3.4.2007. Even after the dismissal order, the first respondent has issued notice to the parties on 30.4.2007 for enquiry fixing the date as 10.5.2007 and in that enquiry no order was passed and in the meantime, on 4.6.2007, the second respondent Union filed an application before the first respondent to the effect that when the application in respect of G.Karunakaran was pending before the first respondent, the dismissal order passed by the petitioner without prior approval from the authority under section 33 of the Industrial Disputes Act becomes invalid and therefore, prayed to set aside the dismissal order. 10. It is, thereafter, by a communication dated 5.6.2007, the first respondent in addition to A.No.514/2006 has included 591 and 810 of 2006, which appear to be relating to enhancement of salary and some other demand and the enquiry in respect of the above said three applications was subsequently adjourned to 28.6.2007 as communicated by the first respondent in the notice dated 14.6.2007. By subsequent communication dated 29.8.2007 in A.No.514/2006 relating to the suspension of G.Karunakaran, the first respondent has fixed the enquiry on 7.9.2007. By another communication dated 7.9.2007, the first respondent restricted the enquiry to https://hcservices.ecourts.gov.in/hcservices/ A.591/2006 and A.810/2006 which, as stated above, appears to relate to the enhancement of salary and some other demands. Ultimately, under the impugned order, the first respondent by numbering it as A.572/07, decided that the dismissal of G.Karunakaran is against section 33(1)(b) of the Industrial Disputes Act. 11. The impugned order refers to the petition of the second respondent dated 24.8.2007. It appears, as it is seen in the counter affidavit filed by the second respondent, that the second respondent Union had given a letter to the first respondent on 17.9.2007 for converting the original application filed under section 2(k) of the Industrial Disputes Act on 14.9.2006 into an individual dispute under section 2A of the Industrial Disputes Act and the same was numbered as A.620/07. It is true that in respect of conciliation proceedings relating to other establishments and workmen, the first respondent has been issuing notices captioned, 'conciliation notices (rkur ngr;Rthu;j;ij ) while in respect of present case, in all notices issued by the first respondent, the term used is 'enquiry' (tprhuiz). But, a reference to the proceedings of the first respondent in A.514/2006, the extract of which has been filed by the petitioner/management in typed set of papers, shows that what was effected by the first respondent throughout was only conciliation. On various dates of adjournment from September, 2006 the first respondent has been using the word (rkur ngr;Rthu;j;ij ) which means 'conciliation talk'. It is also true that the first respondent had no jurisdiction to pass orders, since he was effecting conciliation. On the date of hearing, 12.12.2006, there was an endorsement by the first respondent as follows: "bjhHpw;r';fk; kDjhuhplkpUe;J kd;dpg;g[ fojk; bgw xg;g[f;bfhz;lJ/ eph;thfk; xg;g[f;bfhz;l N:H;epiyapy; eph;thfk; xg;g[f;bfhz;L xU fojk; ju ntz;Lk;/ m/ng/thh;j;ij 21/12/06-12/30/" 12. Again, on 28.12.2006, the endorsement made by the first respondent as it is seen in the typed set of paper of the petitioner is, "eph;thfk; bjhHpw;r';fk; 12/12/06 md;W nfl;lij xg;g[f;bfhs;stpy;iy/ kDjhuhpd; kd;dpg;g[ fojj;Jld; bjhHpw;r';fk; ntW vy;yhg; g [fhh;fs; jpUg;gp bgwt[k; kw;Wk; ,uz;L tUlj;jpw;F ve;j xU g [fhUk; jhf;fy; bra;akhl;nlhk; vd bjhptpj;jjhy; jhd; kDjhuhpd; kd;dpg;g[ Vw;Wf;bfhs;s Koa[k; bjhptpf;fg;gl;lJ/ Writ petition not yet listed. m/ng/thh;j;ij 10/01/2007-12/30" 13. Therefore, the hearing before the first respondent up to https://hcservices.ecourts.gov.in/hcservices/ 13.6.2007 is only for effecting conciliation even though notices issued are for enquiry. The mere reason that the first respondent has not sent notices captioned 'conciliation notice' but has sent notices with the caption, 'enquiry notice' does not take away the power of jurisdiction and the nature of enquiry of the first respondent in effecting conciliation as per the Industrial Disputes Act. For, it is the substance of the proceedings of the first respondent which has to be taken into consideration and not the form in a technical manner, especially while construing a beneficial legislation like the Industrial Disputes Act. Therefore, the contention of the learned counsel for the petitioner as if the proceedings pending before the first respondent was not conciliation proceedings and it was only an enquiry which is not contemplated under the Industrial Disputes Act cannot be countenanced. On record, it is seen that what had been done by the first respondent was only relating to conciliation even though the prayer in the petition filed by the second respondent under section 2(k) of the Industrial Disputes Act is to set aside the suspension order, etc. 14. As it is stated in the counter affidavit filed by the second respondent, the conciliation failure report was submitted on 30.10.2007, which fact is not controverted in the reply affidavit filed on behalf of the petitioner. While so, the dismissal which was on 22.4.2007 before the filing of conciliation failure report by the first respondent dated 30.10.2007 has to be taken only as an order passed during the pendency of the conciliation proceedings. It is the definite case of the second respondent in the counter affidavit that on an application filed by the second respondent on 17.9.2007 for converting the original representation under section 2(k) of the Industrial Disputes Act into one under section 2A of the Industrial Disputes Act, A.No.514/2006 stood renumbered as A.620/07 and ultimately, failure report was submitted on 30.10.2007 which fact also stands not controverted in the reply affidavit. 15. The Industrial Disputes Act, being a labour legislation is intended for the purpose of investigation and settlement of industrial disputes by various methods like, conciliation, adjudication, etc. and while construing the provisions of the Industrial Disputes Act, the view that advances the object of the Act and serves its purpose must be preferred to the one which obstructs the object and paralyses the purpose of the Act, as it was held by the Supreme Court in Kunal Singh v. Union India and another [(2003) 4 SCC 524], wherein similar statutory provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 were construed. 16. A Division Bench of this Court consisting F.M.Ibrahim Kalifulla,J and P.Murgesan,J. in The Correspondent, Sacr4ed Heart Primary School v. The District Elementary Educational Officer, Kanyakumari (2006 (4) CTC 34), while explaining the purposive construction known as 'Heydon's case', has held that while https://hcservices.ecourts.gov.in/hcservices/ construing the provisions of law importance must be given to the true intent of the makers of the Act,'Pro bono publico'. The Division Bench, after referring to various judgments of English Courts as well as our Supreme Court, has observed as follows: "17. In this context, it will be worthwhile to refer to the decisions wherein the rule in Heydon's case, which is also known as 'purposive construction' or "mischief rule" has been succinctly set out. In the earliest decision of the Hon'ble Supreme Court in Bengal Immunity Co. v. State of Bihar and others AIR 1955 SC 661, in paragraph 22 the Hon'ble Supreme Court set out the principle in Heydon's case which reads as under: "22. It is a sound rule of construction of a statute firmly established in England as far back as 1584 when – 'Heydon's case' 1584(3) Co Rep 7a(V) was decided that - ".... for the sure and true interpretation of all Statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered: 1st What was the common law before the making of the Act; 2nd What was the mischief and defect for which the common law did not provide; 3rd What remedy the Parliament hath resolved and appointed to cure the disease of the Commonwealth; and 4th The true reason of the remedy; and then the office of all the judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and 'pro privato commodo', and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, 'pro bono publico". In a subsequent decision of the Hon'ble Supreme Court in Commissioner of Income Tax, Madhya Pradesh and Bhopal v. Sodra Devi, AIR 1957 SC 832, the Hon'ble Supreme Court has stated as under in paragraph 14: "14. .... It is only when the words used are ambiguous that they would stand to be examined and construed in the light of surrounding circumstances and constitutional principle and practice Per Lord Ashbourne in Nairn v. University of St.Andrews, 1909 A.C.147 (B), in the latter event the following observations of Lord Lindley M.R., in Thomson v. Lord Clanmorris, 1900 (1) Ch 718 at p.725 would be apposite: "In construing any statutory enactment, regard must be had not only to the words used but to the history of the Act and the reason, which led to its being passed. You must look at the mischief which had to be cured as well as at the cure provided" (See also the observations of Goddard C.J., in R. v. Paddington and St.Maryleborne Rent Tribunal, 1949 (65) TLR 200 at p.203(D)". https://hcservices.ecourts.gov.in/hcservices/ In an English decision in 1985 (2) All ER 355, the very same rule has been succinctly set out by Lord Rokill in the following words: "It is, therefore, important that the question of construction should be approached by reference to well known principles ignoring that which is irrelevant however interesting, but remembering that statutes should be given what has become known as a purposive construction, that is to say that the Courts should where possible identify 'the mischief' which existed before the passing of the statute and then if more than one construction is possible, favour that which will eliminate 'the mischief' so identified. In the recent decision of the Hon'ble Supreme Court in D.Saibaba v. Bar Council of India and another, AIR 2003 SC 2502, the Hon'ble Supreme Court has held as under in paragraphs 9,18 and 19: "9. .... Where the law provides a remedy to a person, the provision has to be so construed in case of ambiguity as to make the availing of the remedy practical and the exercise of power conferred on the authority meaningful and effective. A construction which would render the provision nugatory ought to be avoided. True, the process of interpretation cannot be utilized for implanting a heart into a dead provision; however, the power to construe a provision of law can always be so exercised as to give throb to a sinking heart .... (Emphasis added) 18. Reading word for word and assigning a literal meaning to Section 48-AA would lead to absurdity, futility and to such consequences as the Parliament could have never intended. The provision has an ambiguity and is capable of being read in more ways than one. We must, therefore, assign the provision a meaning and so read it – as would give life to an otherwise lifeless letter and enable the power of review conferred thereby being meaningfully availed and effectively exercised. (Emphasis added) 19. On the same principle, the provision has to be interpreted from the point of view of exercise of the power by the Bar Council. The interpretation ought to be directed to wards giving the expression a meaning which will carry out the purpose of the provision and make the remedy of review conferred by the provision meaningful, practical and effective...." In yet, another decision of the Supreme Court in Nasiruddin v. S.T.A. Tribunal, AIR 1976 SC 331, the Hon'ble Supreme Court has held as under in paragraph 26: "26. If there are two different interpretations of the words in an Act, the Court will not adopt that which is just reasonable and sensible rather than that which is none of those things....." https://hcservices.ecourts.gov.in/hcservices/ 17. The significance of purposive interpretation theory being applied in welfare legislation like, the Industrial Disputes Act is also reiterated by the Supreme Court in Bharat Singh v. New Delhi Tuberculosis Centre [(1986) 2 SCC 614]. While referring to section 17B of the Industrial Disputes Act, the Supreme Court has held as follows: "11. In interpretation of statutes, courts have steered clear of the rigid stand of looking into the words of the section alone but have attempted to make the object of the enactment effective and to render its benefits into the person in whose favour it is made. The legislators are entrusted with the task of only making laws. Interpretation has to come from the courts. Section 17-B on its terms does not say that it would bind awards passed