IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28.01.2010 CORAM: THE HON’BLE MR. JUSTICE T.S.SIVAGNANAM W.P.No.42570/2006 & M.P.No.1&2/2007 & M.P.No.1/2006 The Management, Tamil Nadu State Transport Corporation, (Villupuram) Division II Ltd, Rangapuram Vellore, rep. by its General Manager .. Petitioner -vs- 1.The Joint Commissioner of Labour (Conciliation) DMS compound Teynampet, Chennai-6 2.S.Kumar ... Respondents Prayer : The Writ Petition filed under Article 226 of the Constitution of India for issue of Writ of Certiorari to call for the records of the 1st respondent in Approval Petition No.115 of 2004 dated 14.02.2006 and to quash the same. For Petitioner : Mr.T.Chandrasekar Spl. Govt. Pleader For Respondents : Mr.P.Subramani Addl. Govt. Pleader for R1 Mr.R.Krishnasamy for M/s.V.Ajoy Khose for R2 ORDER The Management of the Tamil Nadu State Transport Corporation, Vilupuram Division is the petitioner and the challenge is to an order passed by the first respondent under Section 33 (2) (b) of the Industrial Disputes Act 1947 (hereinafter referred to "as the Act") refusing to accord approval for the dismissal of the second respondent. 2. The facts of the case being that the second respondent was a driver employed in the petitioner corporation and at the time of appointment he had produced a transfer certificate in proof of his educational qualification, which contained the seal of the Headmaster, Government High School Ussoor, bearing admission No.1231. Based on the such certificate, the second respondent was appointed and an undertaking was obtained from him stating that if any information given by him is found to be false, he would be terminated https://hcservices.ecourts.gov.in/hcservices/ from service. The transfer certificate was forwarded to the concerned school for verification of its genuineness and the Headmaster of the school informed that such certificate was bogus. Based on such information disciplinary action was initiated against the second respondent, domestic enquiry was conducted and the enquiry officer found that the charges are proved. Second show cause notice was issued to the petitioner proposing a penalty of dismissal from service and after considering the explanation of the petitioner, the second respondent was terminated by order dated 05.03.2004, since at the time of dismissal the issue relating to bogus was pending conciliation before the Commissioner of Labour, the petitioner sought for approval of the dismissal of the second respondent by filing the petition under Section 33 (2) (b) of the Act, before the first respondent. By the impugned order, the first respondent refused to grant approval. 3. Mr.T.Chandrasekar, learned counsel appearing for the petitioner would contend that the first respondent held that prima facie case for dismissal has been made out and the dismissal did not amount either to an unfair labour practice or victimization and therefore, the first respondent ought to have granted approval. It is further submitted that the first respondent erred in holding that no actual proof has been filed to prove one month wages has been paid at the time of dismissal and the first respondent having held that prima facie case is made out ought to have granted approval. The finding of the first respondent that non-furnishing of the basic report would vitiate the proceedings is an erroneous finding. 4. Mr.R.Krishnaswamy, learned counsel appearing for the second respondent would contend that due to two fire accidents, which took place in the second respondent's house during 1998 and 2000, all the properties including the certificate were destroyed and therefore the second respondent could not produce the original certificate. However, the management chose to act based on an anonymous complaint and that the petitioner reliably understands that the District Elementary Educational Officer wanted the original records from the school to be produced. It is further submitted that the disciplinary proceedings initiated against the petitioner was vitiated on several grounds as the petitioner was not furnished with the documents based on which the charge was framed, except the Superintendent of the petitioner corporation, who conducted the investigation no other witness was examined, the Headmaster, who is stated to have given the certificate was not examined. The domestic enquiry was commenced and concluded on the same day in great haste without affording sufficient opportunity to the petitioner. The learned counsel would further submit that the second respondent was not paid one month salary, which is a mandatory requirement under Section 33 (2) (b) of the Act. In support of this contention, the petitioner relied upon the following decisions:- https://hcservices.ecourts.gov.in/hcservices/ 1) The Straw Board Manufacturing Co. Ltd., Saharanpur, Vs. Govind, [AIR 1962 SC 1500] 2) Pandian Roadways Corporation Ltd,[2002 III LLJ 765] 3) Central Bank of India, Ltd., New Delhi Vs. Prakash Chand Jain, [1969 2LLJ 377], 4)Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd Vs. Ram Gopal Sharma and Others [2002 2 SCC 244] and unreported Judgment of this Court in W.P.No.12228/1987 dated 03.04.1991. 5. The learned counsel would further submit that non-examination of the Headmaster, who stated that the transfer certificate produced by the second respondent is bogus, is fatal to the proceedings and though the S.O., who investigated the case and the Headmaster who gave the letter Exhibit M-5 were available, were not produced for cross examination and therefore, it has to be necessarily held that there is no legal evidence in support the charge, since neither the Headmaster nor the security officer, who investigated the case were produced for cross examination. Further the learned counsel would submit that it was always open to the petitioner corporation to request the permission of the first respondent to lead evidence. However, this procedure was not resorted to by the management and therefore, there is no error in the order passed by the first respondent rejecting approval. The learned counsel relied on the following Judgments in support of the above contention. Hardwari Lal Vs. State of U.P. And Others [1999 8 SCC 582], B.Padmaiah Vs. The Union of India and Others [2007 Writ L.R. page 7]. Finally, the learned counsel appearing for the second respondent would contend that the scope of interference of this Court on the findings of fact recorded by the first respondent especially in labour matters, is very limited and since the impugned order does not suffer from any perversity, this Court would refuse to interfere in the finding of fact recorded by the first respondent. In support of this contention, the learned counsel relied on the following decisions:- 1) Management of Madurantakam Coop. Sugar Mills Ltd Vs. S.Viswanathan [2005 3 SCC 193], 2)Lakshmi Preceision Screws Ltd Vs. Ram Bahagat [2002 6 SCC 552] 3) Assistant Security Officer, Railway Protection Force, Jolarpettai & Others [1996 2 LLJ page 597]. 6. I have carefully considered the submissions on either side and perused the materials on record. 7. The following questions arises for consideration in the present Writ Petition. i)Whether the petitioner management have complied with the requirements under Section 33 (2) (b) of the Industrial Disputes Act. https://hcservices.ecourts.gov.in/hcservices/ ii)Whether the petitioner had established the charge against the second respondent by leading evidence in support of their stand and whether material witnesses were examined and made available for cross examination. iii)Whether the impugned order passed by the first respondent rejecting the approval petition calls for interference in the present Writ Petition. 8. Section 33 of the Act came to be enacted to ensure the fair and satisfactory enquiry of an Industrial Dispute undisturbed by any action on the part of the employer, which could create a fresh cause of action for unrest and problems between the employer and the employees. The object being to preserve status-quo during the pendency of an Industrial Dispute. Sub Section 2 of Rule 33 has been inserted with a different object and it concern action that may be taken by the employer against the employee in respect of the matter not connected with the Industrial Dispute. The Section 33 (2) (b) empowers the management during the pendency of any Industrial Dispute, in accordance with the standing order for any misconduct by the employee not connected with the dispute discharge the employee or punish him by dismissal or otherwise. Proviso 2 Section 33 (2) (b) provides a statutory safeguard to the employee and provides for two conditions to be satisfied, one is that the workman has been paid wages for one month and the other being an application is made simultaneously by the employer to the authority before whom the dispute is pending for approval of the action taken. As pointed out by the learned counsel appearing for the second respondent in the case of The Straw Board Manufacturing Co. Ltd., referred supra, the Hon'ble Supreme Court held that the proviso 2 Section 33 (2) (b) contemplates three things, namely discharge or dismissal, payment of wages and making of an application for approval to be simultaneous and to be part of the same transaction. Therefore, it is necessary that the management should pay the wages and in the absence of proof of such payment, it has to be held that the Proviso 2 Section 33 (2) (b) has not been complied with and in the absence of non-furnishing of particulars of effecting payment to the second respondent, it has to be necessarily held that the first respondent was justified in rejecting the approval petition. This view is supported by the decision of this Court in the case of Pandian Roadways Corporation, referred supra, it is an admitted fact that before the first respondent, the petitioner failed to produce any evidence to establish compliance of the condition in Proviso 2 of Section 33 (2) (b), that wages were paid to the second respondent. Hence, the first question is answered in favour of the workman stating that the management has not complied with the provision 2 of Section 33 (2) (b). https://hcservices.ecourts.gov.in/hcservices/ 9. The second question to be considered is as to whether the management had proved the charge against the petitioner by examining the witnesses. The charge itself was framed based upon two documents namely Exhibit A-6, the certificate from the Headmaster of the School and Exhibit A-5, the letter from the security manager. Admittedly, both the petitioners and the second respondent did not lead any oral evidence before the first respondent. The management held that the charge is proved by examining an officer of the corporation, whose neither the complainant nor the person, who gave the certificate which was the basis for the charge. Further the headmaster of the school was not examined and the S.O., who investigated the case was also not examined. In my view failure to examine the complainant, the Headmaster of the school and the S.O., who investigated the case has denied the valuable right to the second respondent to cross examine such persons, this is a violation of the principles of natural justice. The Hon'ble Supreme Court in the case of Hardwari Lal Vs. State of U.P. And Others [1999 8 SCC 582], held that in the absence of examination of the complainant or other employee was held to be in violation of the principles of natural justice. The Hon'ble Division Bench of this Court in B.Padmaiah Vs. The Union of India and Others [2007 Writ L.R. Page 7] held that if a decision is arrived at on the basis of no evidence or evidence on which no reliable person could act such decision would be perverse. Failure to examine the complainant, whose complaint is the basis of the disciplinary action against the petitioner and failure to provide opportunity to test to veracity of the complaint results in deprivation of right of the petitioner amounting to gross violation of principles of natural justice. Thus, it has to be held that the management failed to establish the charge by examining proper witnesses. In view of the above question No.2 is also answered in favour of the second respondent workman. 10. The third question is regards the scope of interference by this Court in such matters, this question has been settled by the Hon'ble Supreme court in various decisions and it would be relevant to refer to the decision in Management of Madurantakam Coop. Sugar Mills Ltd, [2005 3 SCC 193], wherein the Hon'ble Supreme Court held that:- "12. Normally, the Labour Court or the Industrial Tribunal, as the case may be, is the final court of facts in these types of disputes, but if a finding of fact is perverse or if the same is not based on legal evidence the High Court exercising a power either under Article 226 or under Article 227 of the Constitution can go into the question of fact decided by the Labour court or the Tribunal. But before going into such an exercise it is necessary that the writ court must record reasons why it intends reconsidering a finding of fact. In the absence of any such defect in the order of the Labour https://hcservices.ecourts.gov.in/hcservices/ Court the writ court will not enter into the realm of factual disputes and finding given thereon." 11. On perusal of the findings rendered by the first respondent, which in my view has been done after appreciating all the documents on record cannot be stated to be a finding without any basis or that there is any perversity in the approach of the first respondent. Therefore this Court would not embark upon the exercise of re- appreciating the factual findings, which are not warranted considering the facts and circumstances of this case. Accordingly, the question No.3 is answered against the petitioner. 12. For all the above reasons, the writ petition fails and is accordingly dismissed. Consequently, connected miscellaneous petitions are also closed. However, there shall be no order as to cost. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar pbn To The Joint Commissioner of Labour (Conciliation) DMS compound Teynampet, Chennai-600 006. 1 cc To Mr.V.Ajaykhose, Advocate, SR.5021 1 cc To Mr.T.Chandrasekaran, Advocate, SR.4831 W.P.No.42570/2006 LA(CO) sra 03.02.2010 https://hcservices.ecourts.gov.in/hcservices/