IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25.07.2008 C O R A M THE HONOURABLE Mr.JUSTICE F.M.IBRAHIM KALIFULLA W.P.No.23446 of 2007 The Management of Futura Polyesters Ltd., (Formerly known as) Indian Organic Chemicals Ltd., Manali, Chennai – 600 068. .. Petitioner -Vs- 1. The Presiding Officer, I Addl. Labour Court, Chennai – 104. 2. A. Manoharan. .. Respondents Writ Petition filed under Article 226 of the Constitution of India for the issuance of a Writ of Certiorari, calling for the records relating to the award dated 10.05.2007, passed in Complaint No.1/07, on the file of I Addl. Labour Court, Chennai, the 1st Respondent herein and quash the same. For Petitioner : Mr.A.L.Somaiyaji, Senior Counsel for Mr.J.James. For Respondent 2 : Mr.A.Manoharan, Party-in-Person. - - - - O R D E R The petitioner is aggrieved against the order of the first respondent Labour Court dated 10.05.2007, passed in Complaint No.1/07. 2. The brief facts which are required to be stated are that the second respondent was employed as plant operator in the petitioner's manufacturing unit. He remained absent from 09.02.2004, on the ground of Psychosomanic illness. When he reported for duty on 21.02.2004, the petitioner advised him to appear before the Medical Board to ascertain his fitness for duty. Since the second respondent refused to appear before the Medical Board, the petitioner by an order dated 08.09.2004, discharged him https://hcservices.ecourts.gov.in/hcservices/ from service with retrospective effect on the ground that he was unfit for work. 3. Even before the passing of the order dated 08.09.2004, it is stated that the second respondent raised an Industrial Dispute alleging non-employment from 21.02.2004, which dispute was conciliated upon by the Assistant Commissioner of Labour of the Government of Tamil Nadu. In the Conciliation Proceeding, the petitioner took the stand that the second respondent continue to remain in their service and therefore the Conciliation Officer submitted his failure report on 24.08.2004 and a copy of which was furnished to the petitioner as well as the second respondent on 02.09.2004. 4. After the order of termination dated 08.09.2004, the second respondent approached the first respondent by way of a complaint filed under Section 33 A of the Industrial Disputes Act, hereinafter referred to as the Act, which was taken on the file of the first respondent as I.D.No.465/04. Two years after the said dispute was entertained by the first respondent, the second respondent filed an application in I.A.No.73 of 2006, in the said dispute alleging that what was filed by him was a complaint under Section 33 A and therefore his claim made earlier should be treated as a complaint and dealt with under Section 33 A of the Industrial Disputes Act. Even the said I.A. was stated to have been filed in the form of a memo. The first respondent Labour Court accepted the stand of the second respondent and treated his petition which was earlier numbered as I.D.No.465 of 2004 as a complaint under Section 33A of the Industrial Disputes Act and numbered as Complaint No.1 of 2007. 5. The said order of the Labour Court was challenged by the petitioner in W.P.No.22221 of 2006 and by an order dated 10.10.2006, the said writ petition was also dismissed holding that the conversion of the dispute as a complaint under Section 33 A does not take away the right of the petitioner to contest the same under the provisions of the Industrial Disputes Act. The petitioner however challenged the said order of the learned Single Judge in W.A.No.1324 of 2006 and by an order dated 22.12.2006, the Division Bench affirmed the order of the learned Single Judge. The Special Leave Petition preferred by the petitioner was also dismissed at the admission stage. 6. Thereafter, the complaint was dealt with by the first respondent Labour Court on merits and by the order impugned in this writ petition dated 10.05.2007, the first respondent Labour Court held that the order of termination dated 08.09.2004, was passed in violation of the provisions of Section 33 of the Industrial Disputes Act; that the petitioner failed to hold an https://hcservices.ecourts.gov.in/hcservices/ enquiry before passing the order of discharge dated 08.09.2004; that the petitioner also did not ask for any opportunity to let in any evidence to support the order of discharge and therefore the petitioner having failed to prove the medical unfitness of the second respondent, the order of termination was invalid. So holding, the first respondent Labour Court directed reinstatement of the second respondent with all backwages, continuity of service and all other attendant benefits. 7. Assailing the same, Mr.A.L.Somaiyaji, learned senior counsel appearing for the petitioner contended that the complaint preferred by the second respondent under Section 33 A of the Industrial Disputes Act itself was not maintainable in the facts and circumstances of the case; that assuming the complaint was maintainable, since the conciliation failure report was received by the petitioner and the second respondent on 02.09.2004, while the order of discharge came to be passed only on 08.09.2004, there was no violation of Section 33 as alleged by the second respondent; that the Labour Court having disallowed the petitioner to cross examine the second respondent on merits, who was examined as WW1, it was not justified in holding that the petitioner failed to establish the merits of the allegations based on which the order of discharge dated 08.09.2004, came to be passed. 8. The learned Senior Counsel further contended that the first respondent Labour Court failed to consider the opinion of the company's Medical Officers, based on whose certificate, the order of discharge came to be passed. According to the learned Senior Counsel, the first respondent Labour Court in its order dated 08.03.2007, passed in I.A.Nos.15 to 19 of 2007 in complaint No.1/2007 having held that in the interest of justice, petitioner's additional counter should be received and should be allowed to adduce evidence prevented the petitioner to cross examine the second respondent on merits and thereby committed serious irregularity while passing the impugned award. The learned senior counsel relied upon the decisions reported in 2006 (5) SCC 752, 2006 (9) SCC 643, 2005 (4) APLT 541, AIR 1972 Bom 152, Vol 33 Bom LR 396, 1980 (1) MLJ 395 and 1984 (3) Bombay Case Reporter 36 in support of his submissions. 9. As against the above submissions, the second respondent who appeared as Party-in-Person contended that since the order of discharge dated 08.10.2004, was passed in violation of Section 33 (2)(b) of the Industrial Disputes Act, the said order being a nullity, the first respondent Labour Court was justified in declining the request of the petitioner to delve into the merits of the order of dismissal. He also contended that since the maintainability of Section 33 A complaint was dealt with by this Court in the earlier writ petition and the writ appeal, it is no https://hcservices.ecourts.gov.in/hcservices/ longer open to the petitioner to canvass the very same grounds in this writ petition. The second respondent however, curiously contended that the first respondent Labour Court failed to consider various relevant aspects and therefore it requires remittal. He further contend that the allegation of medical unfitness was not established by the petitioner before the first respondent. According to him the medical unfitness as declared by the Company's Medical Officer cannot be accepted as he was not competent to issue such a certificate. He relied upon the following decisions in support of his submissions viz., AIR 2001 SC 2090, AIR 1955 SC 258, AIR 1966 SC 380, AIR 2002 SC 643, AIR 1960 SC 160, 2007 (2) LLN 226, AIR 1999 SC 2423, AIR 1953 SC 88, AIR 1998 SC 1681, AIR 1978 SC 311 and AIR 1962 SC 1363. 10. After hearing the learned senior counsel appearing for the petitioner and the second respondent in person, I find the following questions require to be dealt with in this writ petition, viz., (a) Whether there was any violation of Section 33 of the Industrial Disputes Act in order to maintain a complaint under Section 33 A of the Industrial Disputes Act ? (b) Whether the complaint under Section 33 A of the Industrial Disputes Act as preferred by the second respondent was maintainable before the first respondent Labour Court ? (c) Even if it were to be held that Section 33 A complaint as preferred is not maintainable, whether the first respondent Labour Court had jurisdiction to deal with the claim of the second respondent in the proceedings which culminated in the impugned Award ? (d) Whether the impugned Award is sustainable in law and what is the relief to be granted to the parties ? 11. To consider the first question viz., Whether there was any violation of Section 33 of the Industrial Disputes Act in order to maintain a complaint under Section 33 A of the Industrial Disputes Act, the provisions of the Industrial Disputes Act are required to be referred. Prior to the passing of the order of termination dated 08.09.2004, the second respondent approached the Conciliation Officer viz., the Assistant Commissioner (Conciliation-II) Kurulagam, by filing an application on 27.04.2004. In the said application, the second respondent alleged non-employment on and after 21.02.2004. The said https://hcservices.ecourts.gov.in/hcservices/ application was filed under Section 2 A of the Industrial Disputes Act. The petitioner filed their counter in the said dispute on 21.07.2004, contending that there was no termination as alleged by the second respondent and that he continue to remain in their service and therefore the dispute as raised under Section 2 A was not maintainable. The Conciliation Officer sent his failure report dated 24.08.2004, to the second respondent and marked copies of the report to the Secretary, Labour and Employment Department, Madras-9, Commissioner of Labour, Joint Commissioner of Labour, Deputy Commissioner of Labour as well as the petitioner. The said report was stated to have been received by the petitioner and the second respondent on 02.09.2004. 12. It is in the above said background, the second respondent preferred the present complaint under Section 33 A before the first respondent Labour Court alleging that there was violation of Section 33 of the Industrial Disputes Act and the petitioner should be directed to reinstate him with all backwages and continuity of service. According to the second respondent, even though the conciliation failure report dated 24.08.2004, was received by both the parties on 02.09.2004, unless the said report had actually been received by the Government, the dispute was deemed to have been pending on the file of the Conciliation Officer and therefore the dismissal order passed on 08.09.2004, prior to the date of such receipt of the Report by the Government was in violation of the provisions of the Industrial Disputes Act. 13. To test the correctness of the above stand of the second respondent, a reference to Section 2A, 12, 20, 22, 33 and 33A have to be made. Section 2A(2) has been inserted by way of amendment by the State of Tamil Nadu by Tami Nadu Act 5 of 1988. While under Section 2A of the Act, even the individual dispute relating to non-employment of the workman should be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute, by inserting sub- section (2) by way of State Government amendment, provision has been made to enable the individual workman to approach the Labour Court for adjudication of the issue of non-employment, if no settlement is arrived at in the course of conciliation proceedings. In order to workout such an easy remedy made available to the individual workman under Section 2A(2), consequential rules have also been introduced in Rules 25A and 25B in the Tamil Nadu Industrial Disputes Rules, hereinafter referred to as the Rules. 14. Rule 25A prescribes that the Conciliation Officer should send a report under sub-section 4 of Section 12 of the Act to the Secretary to Government of Tamil Nadu, Labour Department, Fort St. George, Madras, through the Commissioner of Labour, Madras. Under https://hcservices.ecourts.gov.in/hcservices/ Rule 25B it is provided that on failure of conciliation in a dispute raised under Section 2(A)(1), the Conciliation Officer should send an intimation to the aggrieved workman with a copy marked to the employer as well as the Commissioner and Secretary to Government, Labour and Employment Department, Madras-9 and Commissioner of Labour, Madras-6 and on receipt of such intimation, the aggrieved workman can apply in Form C-1 to the Labour Court having jurisdiction over the area for adjudication of such dispute. While such dispute should be filed in duplicate, along with the dispute a copy of the intimation received from the Conciliation Officer should also be filed. 15. Section 12 of the Act prescribes the duties of the Conciliation Officers. Under sub-section 4 of Section 12 if no settlement is arrived at in an industrial dispute raised before him, the Conciliation Officer should send a full report to the appropriate Government setting forth the steps taken by him for resolving the dispute and the reasons on account of which, in his opinion, a settlement could not be arrived at. As we are not concerned with the Industrial Dispute as defined under Section 2 (k) and we are presently concerned with an individual dispute, which by virtue of Section 2A of the Act is deemed to be an industrial dispute, the other provision contained in Section 12(5) of the Act need not be gone into. 16. Under Section 20 of the Industrial Disputes Act, it is specifically provided that the Conciliation Proceedings should 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 and such conciliation proceedings should be deemed to have concluded either on account of a settlement reached between the parties or in its absence the failure report of the Conciliation Officer is received by the appropriate Government or when a reference is made with reference to the said dispute to a Court under Section 10 of the Act, even during the pendency of the conciliation proceedings. Section 22 imposes a statutory prohibition in relation to strikes and lock-outs in a public utility service. 17. When the above provisions are examined, I find distinctive features in relation to a collective dispute falling squarely under Section 2(k) of the Industrial Disputes Act, vis-a-vis, the procedure contemplated under Section 12, 20 and 22 of the Industrial Disputes Act as regards the sequences and consequences of conciliation talks in relation to the said dispute, in contrast to an individual dispute raised under Section 2A of the Industrial Disputes Act, which by virtue of a fiction created under the said provision, deemed to be an industrial dispute for which a separate procedure is prescribed to deal with https://hcservices.ecourts.gov.in/hcservices/ such dispute by the conciliation machinery under Section 2A(2) read along with Section 12 (1) to (4) and the corresponding rules viz. Rules 25A and 25B of the Tamil Nadu Industrial Disputes Rules. 18. It is well settled that a collective dispute under Section 2(k) of the Industrial Disputes Act is one which encompasses very many issues viz., differences between employers and employers or between employers and workmen or between workmen and workmen, which is connected with the employment or non- employment or the terms of employment or with the conditions of labour, of any person. Whereas, a dispute under Section 2A concerns only an individual workman and that too with reference to his non-employment either by way of discharge, dismissal, retrenchment or termination in any other form. Since the raising of an industrial dispute even in regard to an individual workman in relation to his non-employment was also covered by Section 2(k) and since such affected individual workmen were facing difficulties in their non-employment issues being raised by way of a collective industrial dispute, the legislature thought it fit to ease out the situation by introducing Section 2A to enable such individual workman to sort out their grievances as regards their non-employment by raising an industrial dispute without any support from any other workman or body of workmen. The Amendment by way of Tamil Nadu Act 5 of 1988 provides a further relaxation enabling the concerned individual workman to invoke Section 2A(2) of the Industrial Disputes Act to approach the concerned adjudicating machinery viz. the Labour Court without waiting for any reference to be made under Section 10 of the Industrial Disputes Act. 19. Therefore, in the present juncture after the introduction of Section 2A in the present form as set out in the Industrial Disputes Act, it can no longer be said that any dispute covered under the said provision should still be equated to the density of a dispute governed by Section 2(k) of the Act read along with Section 10 and the consequential procedure applicable to such a dispute. In as much as the legislature has though it fit to enable the concerned individual workman to seek for a remedy in case of non-employment either at the conciliation level or for getting it adjudicated by approaching the Labour Court without much effort, it will have to be held that such a dispute falling under Section 2A will have to be treated differently then the one covered by Section 2(k) and the consequential procedure set down in dealing with such dispute. 20. Keeping the above said legal background in relation to an individual dispute covered by Section 2A(2) when the other provisions connected thereto are considered and examined, it will https://hcservices.ecourts.gov.in/hcservices/ have to be held that when an individual workman raises an industrial dispute by invoking Section 2A, in the event of failure of such dispute before the Conciliation Officer, what all required is that as soon as the intimation is received from the Conciliation Officer of the failure report of such conciliation, he will have to straightaway move the appropriate Labour Court within whose jurisdiction the said dispute falls by filing an application in Form C-1. Along with Form C-1 a copy of the intimation received from the Conciliation Officer will have to be filed and thereafter the concerned Labour Court will deal with the said dispute and adjudicate the same as per the procedure prescribed under the Act. 21. The question for consideration is when such a dispute is raised by the workman by invoking Section 2(A) of the Industrial Disputes Act on his own, can it be held that even after the receipt of intimation about the failure of the said dispute by the Conciliation Officer and communicated by the said officer in the manner prescribed under Rules 25A and 25B, it can still be held that the conciliation proceeding continue to remain pending unlike a dispute raised under Section 2(k) of the Industrial Disputes Act, wherein after the failure of conciliation, the report as prescribed under Section 12(4) of the Industrial Disputes Act has to be forwarded to the Government and the appropriate Government will have to examine the scope of making a reference of the said dispute as contemplated under Section 10 of the Industrial Disputes Act. Therefore, the situation as between the dispute raised under Section 2A and the one raised under Section 2(k) are entirely different in its composition. 22. A dispute under Section 2(k) would cover all sorts of disputes by nature of the definition contained in the said provision whereas under Section 2A, the dispute is restricted to an individual workman and that too in relation to his non-employment alone. While under Section 2(k) a reference is made by a specific order passed by the State Government, in respect of a dispute raised under Section 2A by virtue of Tamil Nadu Act 5 of 1988 by invoking Section 2A(2) immediately after the receipt of the failure report, the workman concerned can straightaway approach the Labour Court along with a copy of the intimation received from the Conciliation Officer. Keeping the nuances relating to the disputes falling under Section 2(k) and Section 2A in mind, the restrictions imposed under Section 33 of the Industrial Disputes Act along with the other provisions have to be examined. 23. Under Section 33, the restrictions are three fold. While under sub-section (1) permission is required to be obtained from the Authority before whom the proceeding is pending, under sub- https://hcservices.ecourts.gov.in/hcservices/ section (2) approval of the said Authority has to be obtained. Under sub-section (3) in respect of protected workman prior permission will have to be obtained from the very same Authority. One common requirement prescribed in all the three sub-sections of Section 33, is that either the permission or the approval will have to be obtained from the Authority before whom either the conciliation proceedings or dispute is pending consideration. One other special feature of Section 33 is that it contemplates the maintenance of either conditions of service in relation to the workman concerned to remain unaltered or the termination of employment of any of the workman concerned in the dispute; during the pendency of the conciliation proceedings or the industrial dispute as the case may be; depending upon the order to be passed by the Authority concerned as the case may be. 24. While considering the scope and ambit of Section 33, the Hon'ble Supreme Court in an earlier decision reported in Automobile Products of India Ltd vs. Rukmaji Bala (1955) 1 LLJ 346 took the view that the purpose of the prohibitions contained in Section 33 were two fold viz., on the one hand, they are designed to protect the workmen concerned during the course of industrial conciliation, arbitration and adjudication, against employer's harassment and victimisation, on account of their having raised the industrial dispute or their continuing the 'pending proceedings', while on the other hand they seek to maintain status quo by prescribing management conduct which may give rise to 'fresh disputes which would further exacerbate the already strained relations between the employer and the workmen'. In a later decision reported in Boisahabi Tea Estate vs. Presiding Officer, Labour Court, Dibrugarh 1981 Lab IC 557 it was held that the Section is made for the protection of 'the workman concerned in the dispute' against victimisation by an employer on account of his having raised an industrial dispute or his being a party to a pending industrial proceeding and to ensure that pending industrial disputes are brought to an expeditious determination in a peaceful atmosphere, without being disturbed by any subsequent cause tending to accelerate or deteriorate the already strained relationship between the management and the workman. In yet another decision, the Hon'ble Supreme Court held that in all cases, where industrial disputes are pendente lite before an authority mentioned in Section 33, it was thought necessary that such disputes should be conciliated or adjudicated upon by the authority in a peaceful atmosphere, undisturbed by any subsequent causes for bitterness or unpleasantness. In order to achieve the said object, a ban was imposed upon the employer from exercising his common law, statutory or contractual right to terminate the services of his employees or alter the terms of such services to their prejudice. https://hcservices.ecourts.gov.in/hcservices/ 25. It will have to be stated therefore that the said two expressions 'pending conciliation proceeding' or 'pending dispute' in relation to a comprehensive collective industrial dispute under Section 2(k) in contrast to the one falling under Section 2A will have to be analyzed independently and there cannot be any blindfolded approach to the vexed question. As stated earlier, the complexities in relation to an industrial dispute falling under Section 2(k) varies in very many degrees when compared to an industrial dispute covered by Section 2A of the Act. When the purport of the ban imposed under Section 33 as highlighted by the Hon'ble Supreme Court are applied, it will have to be held that in respect of an industrial dispute falling under Section 2(k) which invariably concerns a collective dispute backed by substantial section of workmen, any alternation either in the terms of employment by resorting to termination of any employee connected with the dispute