IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01.07.2008 CORAM THE HONOURABLE Mr. JUSTICE K. CHANDRU W.P.Nos.2651 and 4194 of 1999 Tamil Nadu State Transport Corporation (Villupuram Dvn.II)Ltd., formerly known as Pattukottai Azhagiri Transport Corporation Ltd. By its Managing Director, Rengapuram, Vellore 632 009. .. Petitioner in WP 2651/99 Agnesh .. Petitioner in WP 4194/99 Versus 1. The Presiding Officer, Industrial Tribunal, Chennai 600 104. 2. Aknesh 3. Ezhilvili 4. Anbudoss ..Respondents in WP 2651/99 1. Managing Director, Tamil Nadu Government Transport Corporation, Vellore. 2. Presiding Officer Industrial Tribunal, Chennai 104. ..Respondents in WP 4194/99 R2 impleaded as per order of this Court dated 19.02.2004 in WPMP No.1650 of 2004. PRAYER IN W.P.NO.2651/99: Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorari calling for the records relating to the award dated 04.02.1998 in Complaint No.4/94 in I.D.No.62/82 on the file of the Industrial Tribunal, Chennai, the first respondent herein and quash the same. PRAYER IN W.P.NO.4194/99: Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified mandamus calling for the records relating to the award in Complaint No.4/94 and to quash that part of the Award that "the complaint is entitled to 50 per cent of back wages from 1st March 1994 directing the respondent to pay the back wages for the period from 30.01.1992 to 03.09.1998 including other monetary benefits that follow the death https://hcservices.ecourts.gov.in/hcservices/ while in service". Prayer amended as per order of this Court dated 19.02.2004 in WPMP No.1650 of 2004. In WP 2651/99: For Petitioner : Mr.V.R.Kamalanathan For R2 to R4 : Mr.C.Manohar IN WP 4194/99: For Petitioner : Mr.C.Manohar For R1 : Mr.V.R.Kamalanathan O R D E R The petitioner Corporation which was earlier known as Pattukottai Azhagiri Transport Corporation, challenges the Award passed by the Industrial Tribunal in Complaint No.4 of 1994 dated 04.02.1998. The complaint was preferred by one T.Ramadoss who was working as a conductor in the erstwhile Pattukottai Azhagiri Transport Corporation. He was dismissed from service by order dated 30.01.1992. The ground for dismissal was his unauthorised absence and an enquiry was held and thereafter, he was dismissed from service. At the time when the petitioner was dismissed from service, an industrial dispute was pending being I.D.No.62 of 1982 before the Industrial Tribunal relating to payment of bonus and ex gratia payment to workmen employed in all the Transport Corporations. Erstwhile Pattukottai Azhagiri Transport Corporation was also a party to the said industrial dispute. For the reason best known to them, the Corporation did not seek for approval of their dismissal order before the Tribunal by filing appropriate application under Section 33(2)(b) of the Industrial Disputes Act. Taking advantage of the same, the said Ramadoss filed a complaint under Section 33A of the Industrial Disputes Act complaining about the dismissal. The Tribunal after conducting the trial and after marking all documents held that the action of the petitioner Corporation in not filing an approval petition will make the dismissal order void ab initio. This proposition of law has been well settled by a Constitution Bench judgment of the Supreme Court reported in 2001(1)Supreme 181 [Jaipur Zila Sanskari Bhooki Vikas Bank Ltd. vs. Shri Ram Gopal Sharma & Others]. In that judgment, the Supreme Court has clearly held in paragraph No.14 as follows: "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 bona fide; 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 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 https://hcservices.ecourts.gov.in/hcservices/ 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 complaint under Section 33A challenging the order granting approval on any of the grounds available to him. Section 33A 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 33A and that the order of dismissal or discharge becomes invalid or void only when it is set aside under Section 33A 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 or dismissal becomes inoperative because of contravention of proviso to Section 33(2)(b), Section 33A would be meaningless and futile. The said Selection 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." 2. The Supreme Court had reiterated that the employees may not be driven to further forums and they are entitled for wages for the said period. In that view of the matter, the Tribunal did not go into the merits complaint. But by following the judgment of the Supreme Court, set aside the order of termination and directed his reinstatement with 50% of the backwages with effect from 01.03.1994 by its Award dated 04.02.1998. It is against this award, the present writ petition has been filed. 3. Pending the writ petition, this Court granted an interim stay on 18.02.1999, which was subsequently made absolute on 27.12.2002. In the meanwhile, the said Ramadoss passed away and his legal heirs have been brought on record as respondents 2 to 4. The only question that arises for consideration in this writ petition is whether the impugned Award passed by the Tribunal suffers from https://hcservices.ecourts.gov.in/hcservices/ material irregularity. 4. Mr.V.R.Kamalanathan, learned counsel appearing for the petitioner Corporation submits that if this procedure is accepted, then the very purpose of Section 33A will become meaningless. This question has been answered by the Supreme Court in paragraph 14 and therefore, such a contention cannot be allowed to be raised, that too, by a public sector Corporation. 5. The second submission made by the petitioner was based upon the judgment of this Court in W.P.No.1970 of 2001 dated 02.01.2007 in the matter relating to V.L.Kalaiselvam vs The Managing Director, Tamil Nadu State Transport Corporation, Villupuram, That case was also taken before the Division Bench in W.A.No.1060 of 2007 dated 29.04.2008. The Division Bench was concerned about the maintainability of the complaint and held that there must be two requirements before a complaint is maintainable. The first was there must be a dispute in which the workman shall be directly concerned and secondly that it should include all the workmen on whose behalf the dispute was raised. In the case before the Division Bench, the workman had joined the Corporation only in the year 1989 and thereafter, it was held that he was not a 'workman' concerned with the dispute. This Court is unable to understand as to how that case will have any relevance to the present case. 6. It is stated by the learned counsel for the workman that the workman was employed even when the Transport service was run by Government department. In the counter statement filed by the Corporation, they have only stated that the Corporation was formed on 31.12.1982 and therefore, they are not concerned with the dispute. This argument of the petitioner overlooks Section 18 of the Industrial Disputes Act, wherein, the Award of the Industrial Tribunal is binding on the petitioner Corporation in terms of Section 18(3)(c) of the Industrial Disputes Act. In that view of the matter, the second contention of the petitioner Corporation fails. Therefore, the writ petition is misconceived and devoid of merits. Accordingly, the writ petition stands dismissed. No costs. The petitioner Corporation is directed to settle all the terminal benefits in favour of R2 to R4 within a period of eight weeks from the date of receipt of a copy of this order. 7. In the light of the order passed in W.P.No.2651 of 1999 the other writ petition filed by the second respondent in W.P.No.4194 of 1999 has become unnecessary and accordingly, the same is dismissed. No costs. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ Gms To 1. Managing Director, Tamil Nadu Government Transport Corporation, Vellore. 2. Presiding Officer, Industrial Tribunal, Chennai 104. +1 cc To Mr.C.Manohar, Advocate, SR.33856 +1 cc To Mr.V.R.Kamalanathan, Advocate, SR.33910 W.P.Nos.2651 and 4194 of 1999 ssv [co] gkg/11.7 https://hcservices.ecourts.gov.in/hcservices/