IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 19.11.2010 CORAM: THE HONOURABLE MR.JUSTICE V. DHANAPALAN W.P. Nos.1413, 1415, 1014 and 983 of 2008 P.Sundararaj ... Petitioner in W.P.Nos.1413 & 1415 of 2008 M.Radhakrishnan ... Petitioner in W.P.Nos.1014 & 983 of 2008 vs. 1. The Presiding Officer, I Addl. Labour Court, High Court Compound, Chennai – 600 104. 2. The Management of Tamil Nadu Co-operative Milk Producers Federation Ltd., Anna Salai, Nandanam, Chennai 600 035. ... Respondents in all W.Ps. Writ Petitions filed under Article 226 of the Constitution of India praying for the issuance of writs of certiorari calling for the records from the file of the 1st respondent in C.P.Nos.214, 456, 455 and 209 of 2004, respectively and quash the impugned orders dated 30.04.2007 made therein insofar as the 1st respondent has negatived the claim of the petitioners. For Petitioner in all W.Ps. : Mr.K.M.Ramesh For Respondents in all W.Ps : Mr.C.R.Dasarathan, for R2 C O M M O N O R D E R Since the relief sought by the petitioners arise out of the same cause of action, these writ petitions are decided by a common order. 2. Heard Mr.K.M.Ramesh, learned counsel for the petitioners and Mr.C.R.Dasarathan, learned counsel appearing for the 2nd respondent. 3. It is the case of the petitioners that they joined the services of the 2nd respondent Management as Salesmen in the year 1980. On 19.11.1980, the 2nd respondent Management orally denied work to 1069 workmen for indulging in strike. The petitioners were also terminated from service on 19.11.1980. The Tamil Nadu Dairy Development Corporation Employees Union (hereinafter referred to as https://hcservices.ecourts.gov.in/hcservices/ the 'Union') raised industrial dispute regarding denial of employment to 1069 workmen and the same was taken up as I.D.Nos.31 of 1985 and 70 of 1986 on the file of the Industrial Tribunal, Tamil Nadu, Chennai. After adjudication, the Industrial Tribunal, Chennai passed a common Award dated 17.02.1997 directing reinstatement of 1069 workmen with continuity of service, with 25% backwages and with all other attendant benefits. The petitioners herein were also granted reinstatement in service. 3a. The petitioners would further state that the 2nd respondent Management reinstated them in service pursuant to the Award passed by the Industrial Tribunal along with 389 workmen on 10.03.1997. While the petitioners were working after reinstatement, the 2nd respondent Management initiated disciplinary proceedings against them for certain alleged misconduct and ultimately dismissed them from service by an order dated 24.12.2003. 3b. It is further stated that the Union raised an industrial dispute under Section 2(k) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'I.D.' Act) before the Assistant Commissioner of Labour (Conciliation-2), Chennai – 108 regarding charter of demands, dated 29.10.2002. The said industrial dispute was pending conciliation when the 2nd respondent Management initiated disciplinary proceedings against the petitioners. In the said industrial dispute, since the efforts of the Conciliation Officer to bring about a settlement during the conciliation proceedings did not materialize, a conciliation failure report dated 28.08.2003 under Section 12(4) of the I.D. Act was sent to the appropriate Government by the Assistant Commissioner of Labour (Conciliation – 2), Chennai – 600 108. 3c. At the time when the 2nd respondent Management passed orders dated 24.12.2003 dismissing the petitioners from service, the industrial dispute raised by the Union was pending conciliation. According to the petitioners, when an industrial dispute regarding general demands is pending conciliation, the employer has to apply for approval of its action under Section 33(2)(b) of the I.D. Act. It is the contention of the petitioners that since the action of the 2nd respondent Management in not applying and obtaining approval as required under Section 33(2)(b) of the I.D. Act, the punishment of dismissal from service inflicted on them is illegal and void ab initio and they are deemed to continue in service as if no such punishment was awarded to them. Therefore, the petitioners filed Claim Petitions under Section 33-C(2) of the I.D. Act before the 1st respondent Labour Court for computation of the money value of the benefit due to them. Framing two points for consideration, i.e. (i) Whether the claim under Section 33-C(2) is maintainable and (ii) Whether the petitioners are entitled to the amount as claimed in the petitions, the 1st respondent, though held that the Claim Petitions are maintainable under Point No.1, came to the conclusion that they https://hcservices.ecourts.gov.in/hcservices/ are not entitled to the amount claimed in the petitions under Point No.2, and thereby passed the impugned order dated 30.04.2007 dismissing the Claim petitions. Challenging the said order, the petitioners are before this court. 4. The 2nd respondent has filed counter affidavit. The averments of the petitioners that they were granted reinstatement on 10.03.1997 vide common Award dated 17.02.1997 passed by the Industrial Tribunal in I.D.Nos.31 of 1985 and 70 of 1986 and that the respondent Management dismissed the petitioners from service by an order dated 24.12.2003 after following due process of law for serious misconduct of misappropriation of sale proceeds of the Federation are admitted by the 2nd respondent in the counter. 4a. With regard to the allegation of the petitioners that conciliation proceedings were pending when the order of dismissal was made on 24.12.2003, the 2nd respondent would state that the petitioners Union raised an industrial dispute regarding charter of demands before the Assistant Commissioner of Labour-II; that conciliation ended in failure and the Assistant Commissioner of Labour sent the failure report to the Commissioner and the Government of Tamil Nadu Labour and Employment Department on 28.08.2003 and a copy of the Report was also sent to the petitioner's Union and to the 2nd respondent and the failure report dated 28.08.2003 was received by the appropriate Government before the dismissal order was passed on 24.12.2003. Hence, according to the 2nd respondent, no conciliation proceedings were pending on the date of dismissal order and the allegation of the petitioners that the 2nd respondent had to obtain prior approval from the concerned authority before passing the order of dismissal of the petitioners is not correct. 4b. It is further stated in the counter that unless the dismissal order made on 24.12.2003 is set aside, the petitioners cannot seek the relief for wages under I.D. Act. According to the 2nd respondent, when the petitioners have admitted that they have also raised disputes against the dismissal order and when the same is pending before the Assistant Commissioner of Labour, the petitioners could not maintain the Claim Petitions before the 1st respondent. In such circumstances, the 1st respondent has rightly dismissed the claim of the petitioners. Therefore, the 2nd respondent prays for dismissal of the writ petitions. 5. Mr.K.M.Ramesh, learned counsel appearing for the petitioners has strenuously contended that when the conciliation proceedings ended in failure on 28.08.2003, the same was sent to the Commissioner of Labour by the Conciliation Officer, which was sent to the Government by the Commissioner on 04.10.2004. Therefore, as per the provisions under Section 20(2)(b) of the I.D. Act, unless the report of the Conciliation Officer is received by the appropriate Government, the closure of investigation by the Conciliation Officer https://hcservices.ecourts.gov.in/hcservices/ would not amount to termination of conciliation proceedings and therefore, it is deemed to conclude only when failure report has been received by the Government. Therefore, the approval under Section 33(2)(b) is mandatory and in the absence of any such approval, the petitioners cannot claim for wages as they have been deemed to be in service in accordance with law. 5a. In support of his case, learned counsel for the petitioners has relied on the following : (i) a decision of the Supreme Court reported in 2002 STPL (LE) 30734 SC in the case of JAIPUR ZILA SAHAKARI BHOOMI VIKAS BANK LTD. vs. SHRI RAM GOPAL SHARMA AND OTHERS " 14. ... The order of dismissal or discharge passed invoking Section 33(2)(b) dismissing or discharging an employee brings an end of relationship of 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. But on the other hand, if approval is given by the authority and if the employee is aggrieved by such an approval, he is entitled to make a complaint under Section 33-A challenging the order granting approval on any of the grounds available to him. Section 33-A is available only to an employee and is intended to save his time and trouble inasmuch as he can straightaway make a complaint before the very authority where the industrial dispute is already pending between the parties challenging the order of approval instead of making efforts to raise an industrial dispute, get a reference and thereafter adjudication. In this view, it is not correct to say that even though where the order of discharge or dismissal is inoperative for contravention of the mandatory-conditions contained in the proviso or where the approval is refused, a workman should still make a complaint under Section 33-A and that the order of dismissal or discharge becomes invalid or void only when it is set aside under Section 33-A and that till such time, he should suffer misery of unemployment in spite of statutory protection given to him by the proviso to Section 33(2)(b). It is not correct to say that where the order of discharge https://hcservices.ecourts.gov.in/hcservices/ or dismissal becomes inoperative because of contravention of proviso to Section 33(2)(b), Section 33-A would be meaningless and futile. The said section has a definite purpose to serve, as already stated above, enabling an employee to make a complaint, if aggrieved by the order of the approval granted. " (ii)a decision of this court reported in 2003 (3) CTC 175 in the case of The Management of Sri Ganapathy Mills Co. Ltd., Sankaranagar, Tirunelveli vs. The Presiding Officer, Special Industrial Tribunal, Madras and another "8. The law is well settled that non-compliance of the condition contained in the proviso to Section 33(2)(b), which is mandatory in nature, would render the order of dismissal void and the effect of which shall be that the order of dismissal had never been passed and the employee would be deemed to have continued in service. In the present case, admittedly, the petitioner/management did not comply with the condition under Section 33(2)(b) while rendering the order of the dismissal of the 2nd respondent/workman and hence it shall be that the order of the dismissal has never been passed and the second respondent/workman will be deemed to have been in service and entitled to all the benefits available to him. The second respondent/workman is entitled for the relief prayed for in his writ petition and at the same time, the petitioner/management is not entitled to the relief claimed in its writ petition. " (iii) an unreported decision of this court in W.P.Nos.18367, 18368 of 2008, etc, dated 24.11.2009 in the case of K.Balaraman vs. The Managing Director, Metropolitan Transport Corporation Limited "5. ... Therefore, the petitioners contended inasmuch as there is a dispute pending before the Conciliation Officer and no post approval was sought for in respect of the dismissal of the petitioners, the order of dismissal is void or inoperative. In the very same judgment, the Supreme Court has stated that where there is a non- compliance of proviso of Section 33(2)(b), then the workman is deemed to be in service, entitled for all the benefits as if he has not dismissed from service. The Supreme Court has also held that infraction of Section 33(2)(b) has been made as a penal offence. Therefore, the said provision will not be considered as Mandatory and not directory." (iv)yet another decision of this court reported in (2010) 1 MLJ 43 in the case of The Management of W.S.Industries (India) Ltd. vs. K.Ramakrishnan and others https://hcservices.ecourts.gov.in/hcservices/ "17.In all the decisions referred to by the learned counsel for the appellant, the Courts have held that when a fair and proper settlement had been arrived at then the dispute must be deemed to have come to an end and extravagant claims cannot be made by a rival union to scuttle the attempts to achieve industrial peace. In none of the above judgments have the courts held that on the date of the 18(1) Settlement the proceedings conclude. The proceedings conclude only in terms of Section 20. Therefore, the Management was bound to have applied for approval under Section 33(2)(b) before the Tribunal where I.D.No.84 of 1989 was pending. In fact they had made an application on 28.05.1993 to pass an award in terms of the Settlement. The Industrial Tribunal at first held in the Complaints that the enquiry was unfair and therefore, the orders of dismissal were void. In view of the law laid down in Punjab Beverages (P) Ltd. vs. Suresh Chand MANU/SC/0273/1978 : 1978 (2) SCC 144, even if approval had not been obtained that itself would not make the order of discharge or dismissal inoperative and still the workman must make the order of adjudication on the order of discharge. This was subsequently overruled by Jaipur Zila case. In any event on that date, there had to be a decision on the correctness of the order of discharge or dismissal and that is how the original orders were passed on the complaints. Thereafter, a review was filed and on review the Industrial Tribunal found that the enquiry was fair and the orders of dismissal were valid. Aggrieved by this order of review, the workmen came before this court and by consent, they were sent back to the Tribunal by this court. 19. The pronouncement of the Supreme Court regarding the construction of Section 33(2)(b) resulted in a declaration of law that this is how law stood right from the beginning and that the law was never otherwise. This is clear from the various decisions of the Supreme Court and we will cite only MANU/SC/0083/2003 : 2003 (4) SCC 147 (Sarwan Kumar vs. Madan Lal Aggarwal) as an example where the Supreme Court held that when Section 50 of the Delhi Rent Control Act barred the jurisdiction of a Civil Court to entertain any suit or proceedings relating to eviction of a tenant from the premises covered by the Act, the fact that a decree had been passed and the proceedings now were at the execution stage will not cure the nullity. ..." 6. On the other hand, Mr.C.R.Dasarathan, learned counsel appearing for the second respondent-management has vehemently contended that once the conciliation comes to an end by the failure report dated 28.08.2003, there is a conclusion of the proceedings and therefore, the 2nd respondent has proceeded to dismiss the employees https://hcservices.ecourts.gov.in/hcservices/ for a serious misconduct, by an order dated 24.12.2003 after following due process of law. He would further contend that unless the order of dismissal is set aside, the claim of the petitioners for wages by way of computation cannot be sustained. It is also his contention that the 1st respondent/Labour Court has not given a clear finding to that effect. 7. I have considered the submissions made by the learned counsel on either side and perused the material documents annexed in the typed set of papers and the order passed by the 1st respondent. 8. A circumspection of the facts of the case would reveal that the petitioners joined the services of the 2nd respondent Management as Salesmen in the year 1980. It is seen that on 19.11.1980, there was a strike by 1069 workmen and the Tamil Nadu Dairy Development Corporation Employees Union raised an industrial dispute and the same was taken up as I.D.Nos.31 of 1985 and 70 of 1986 on the file of the Industrial Tribunal, Chennai. After adjudication, an award was passed by the Industrial Tribunal on 17.02.1997 directing reinstatement of 1069 workmen with continuity of service, with 25% backwages and with all other attendant benefits. Pursuant to the same, the 2nd respondent Management reinstated the petitioners in service along with 389 workmen on 10.03.1997. Thereafter, disciplinary proceedings were initiated against the petitioners by the 2nd respondent Management for certain alleged misconduct and ultimately, the petitioners were dismissed from service by an order dated 24.12.2003. 9. On the above background pleadings, the question raised by the petitioners is that when failure report was pending before the Government for orders, and when the dispute is pending before the Government, the respondent Management dismissed the petitioners from service on 24.12.2003 without getting approval from the Assistant Commissioner of Labour, which is in violation of Section 33(2)(b) of the I.D. Act. Section 20 of the Industrial Disputes Act provides as follows : Commencement and conclusion of proceedings : (1) A conciliation proceeding shall be deemed to have commenced on the date on which a notice of strike or lock- out 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; https://hcservices.ecourts.gov.in/hcservices/ (b) where no settlement is arrived at, when the report 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]. 10. From a reading of the above provision, it is clear that till the report of the Conciliation Officer is received by the appropriate Government, the conciliation proceedings shall be deemed to be in continuation. Therefore, there is no closure of investigation by the Conciliation Officer and it would not amount to termination of the conciliation proceedings and the conciliation proceedings shall be deemed to be concluded only when the failure report of the conciliation officer is received by the appropriate Government. 11. In the instant case, it is seen that the conciliation failure report was made on 28.08.2003 and it was sent to the Commissioner as per the provisions of the Act and after considering the same, the Commissioner sent the Report to the Government on 04.10.2004. On the above point, the 1st respondent/Labour Court, passed the impugned order dated 30.04.2007, holding that the action taken by the respondent Management on the basis of the enquiry report by dismissing the petitioners from service amounts to violation of Section 33(2)(b) of the I.D. Act. It was further held by the 1st respondent/Labour Court that when the petitioners have taken criminal action and also raised dispute before the Assistant Commissioner of Labour on the very same ground, they can have relief only after getting award and not before that and therefore, the present Claim Petitions filed by the petitioners for violation of Section 33(2)(b) cannot be entertained, since the petitioners have invoked criminal action against the respondent Management under Section 31(1) and also raised dispute before the Assistant Commissioner of Labour. 12. Law is well settled now. The order of dismissal or discharge dismissing an employee invoking Section 33(2)(b) by an employer is always subject to approval of the authority under the https://hcservices.ecourts.gov.in/hcservices/ said provision. If the authority grants approval, the relationship between the employee and the employer comes to an end. If the approval is not given, it will have to be deemed that the order of discharge or dismissal has never been passed. Consequence of it is that the employee is deemed to have continued in service entitling him all the benefits available. 13. In this case, a question arose at the time when the 2nd respondent/Management passed orders on 24.12.2003 dismissing the petitioners from service. The industrial dispute raised by the Union was pending consideration. If that is so, the employer has to apply for approval of its action of dismissal under Section 33(2)(b) of the I.D. Act, otherwise the punishment of dismissal from service inflicted on them as illegal and ab initio void and therefore they are deemed to continue in service as if no such punishment was awarded to them. Hence, the claim of the petitioners for computation of money under Section 33-C(2) of the I.D. Act has to be considered in view of the above legal principles, as if, the petitioners deemed to have continued in service entitling them all the benefits available. This principle has been analysed by the Supreme Court and a law has been laid down in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. vs. Shri Ram Gopal Sharma and others. 14. It is the strong contention of the learned counsel appearing for the 2nd respondent/Management that though it is pleaded that the Conciliation Report dated 28.08.2003 has been marked as a document, the 1st respondent/Labour Court has not given any clear finding to the effect as to whether there was conclusion of proceedings once the Report was sent to the Commissioner. Equally, the learned counsel for the petitioners consistently pleaded that though the Labour Court finds that there is violation of Section 33(2)(b) and approval is not obtained before passing the dismissal order, ultimately, the Labour Court has gone into a further decision that in view of the pendency of the criminal prosecution under Section 33(1) of the I.D. Act, the claim made by the petitioners cannot be entertained. Thus, two rival contentions deserves consideration. 15. The question raised by the 2nd respondent/Management is that there was a conclusion of the conciliation proceedings and the failure report is the matter to be examined by producing relevant documents of the conciliation report and therefore, the Commissioner's Report to the Government and the relevant documents have not been marked and taken into account and similarly the violation of Section 33(2)(b) has been taken into consideration for giving such a finding. The 1st respondent Labour Court ought to have decided the claim of the petitioners for computation of the money value of the benefit due to them. But, it has held that the petitioners can have relief only after getting award and not before that, since the prosecution is pending. Such a finding of the Labour Court called for interference as it is contrary to law. Therefore, https://hcservices.ecourts.gov.in/hcservices/ this court is of the view that the petitioners' claim for computation of the benefits due to them has to be decided only by the 1st respondent. 16. Accordingly, the impugned order dated 30.04.2007 passed by the 1st respondent is set aside and the matter is remanded to the 1st respondent for fresh consideration on the above points and the petitioners as well as the 2nd respondent Management are directed to produce necessary documents before the 1st respondent Labour Court for consideration of both the issues. The 1st respondent shall conclude the proceedings within a period of three (3) months from the date of receipt of a copy of this order. These writ petitions are allowed with the above direction and observation. No costs. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar abe To : 1. The Presiding Officer, I Addl.