IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 09.11.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.Nos.16139 of 2000 and 17664 of 2001 The Workmen, Rep. By the General Secretary, Bharathiya Employees Mazdoor Sangh, (Gem Granites Unit), 5/76, Dr.Nanjunda Rao Salai, Injambakkam, Chennai - 600 041. ...Petitioner in W.P.No.16139/2000 The Management of Gem Granites, 146, Injambakkam, Chennai - 600 041, Rep. By its General Manager. ... Petitioner in W.P.No.17664/2001 Vs. 1.The Presiding Officer, Industrial Tribunal, City Civil Court Buildings, Chennai - 600 104. 2.The Management of Gem Granites, 146, Injambakkam, Chennai - 600 041. ...Respondents in W.P.No.16139/2000 1.The Presiding Officer, Industrial Tribunal, Chennai - 600 104. 2.V.K.Prakasam 3.N.Sankar 4.P.Baskaran 5.S.Jacob 6.T.V.Shanmugham 7.M.Selvaraj 8.K.Rajendran 9.R.Varadhan Represented by the Gem Granite and Group workers union (Regd) ...Respondents in W.P.No.17664/2001 W.P.No.16139 of 2000 preferred under Article 226 of the Constitution of India praying for the issue of a writ of Certiorari, calling for the records from the files of the first respondent in I.D.No.100 of 1998 and quash its Award dated 26.05.2000. https://hcservices.ecourts.gov.in/hcservices/ W.P.No.17664 of 2001 preferred under Article 226 of the Constitution of India praying for the issue of a Writ of Certiorari, to call for the records and quash the award dated 22.06.2001 made in complaint No.1 of 2000 on the file of the first respondent, the Presiding Officer of the Industrial Tribunal, Chennai. For Petitioners : Mr.K.M.Ramesh in W.P.No.16139 of 2000 and for RR2 to 9 in W.P.No.17664 of 2001 For Petitioners in : Mr.A.L.Somayaji, SC W.P.No.17664/2001 for Mr.M.R.Dharanichander and For Respondent No.2 in W.P.No.16139/2000 C O M M O N O R D E R Both writ petitions came to be posted before this Court on being specially ordered by the Hon'ble Chief Justice vide order dated 10.08.2011. 2. W.P.No.16139 of 2009 is filed by the workmen represented by the General Secretary, Bharathiya Employees Mazdoor Sangh, challenging the Award passed by the Industrial Tribunal in I.D.No.100 of 1998 dated 26.05.2000. They seeks to set aside the Award in so far as it had held that the transfer of the 8 workers covered by the reference was justified and that they are not entitled for any relief. The writ petition was admitted on 22.09.2000. 3. Thereafter, the Management of M/s.Gem Granites have filed the second writ petition viz., W.P.No.17664 of 2001, challenging an Award passed in Complaint No.1 of 2000 made by the Tribunal dated 22.06.2001. In that case, the Tribunal after trial allowed the complaint made by the workmen and held that the dismissal order in violation of Section 33 of the I.D.Act is void. That writ petition was admitted by this Court on 26.09.2001. Pending the writ petition, this Court granted an interim stay on 28.02.2002. 4. When that matter came up on 12.10.2004, this Court directed the Management to pay two months' salary in terms of Section 17-B of the Industrial Disputes Act,1947 except one worker T.V.Shanmugam, who has already settled his account. Thereafter, this Court in WPMP.No.11537 of 2005 further gave a direction to pay the last drawn wages to all the workmen in terms of Section 17-B of the I.D.Act starting from April 2006 till the final disposal of the writ petition. 5.For the sake of convenience, parties are referred to as the Union, Workmen and the Management as the case may be. In view https://hcservices.ecourts.gov.in/hcservices/ of the interconnectivity between the Award in the main ID and the Award in the complaint, which respectively challenged in both writ petitions, they were heard together and a common order is passed. 6.The facts leading to the Industrial Dispute as well as the complaint are as follows:- Bharathiya Employees Mazdoor Sangh, a trade Union in respect of the factory at Injambakkam was formed during August, 1997. It conducted its Flag Hoisting function on 27.08.1997. Prior to this, there was a Union by name Gem Granites Employees Union. That Union was formed with the full aid and patronage of the Management. The formation of the new Union was not able to be digested by the Management. Within one week of its formation, they transferred all the Union leaders who are workmen covered in this writ petition to Ilkal at Karnataka State. Those workers who were transferred and their designation in the Union are P.Bhaskaran (Working President), R.Varadhan (Vice President), M.Shankar (Organising Secretary), M.Selvaraj (Executive Member), T.V.Shanmugham (Secretary), K.Rajendran (Assistant -Secretary), V.K.Prakasam (Treasurer) and S.Jacob (Executive Member). Out of this, M/s.M.Selvaraj and S.Jacob are Helpers and the others are Operators under the management. 7.The trade Union raised an Industrial Dispute against the Management's unfair labour practice including the illegal transfer of the 8 workers. The Deputy Commissioner of Labour -II, Chennai as he could not bring about any mediation sent a failure report under Section 12(4) of the I.D.Act to the State Government. The State Government on consideration of the failure report referred the dispute for adjudication by the Industrial Tribunal at Chennai vide G.O(D)472 Labour and Employment Department, dated 02.07.1998. 8. The Order of reference made to the Tribunal was “whether the action of the Management in transferring 8 workers from Chennai to the branch factory at Karnataka was justified and if not, to what relief they are entitled to?” 9. The said dispute was taken on file by the Industrial Tribunal as I.D.No.100 of 1998 and notice was issued to the Management. Even while the dispute was pending, charge memos were given to each worker. The charge levelled against the workers was that they have disobeyed the orders of transfer. They were asked to show cause as to why disciplinary action should not be taken against them. The workmen contended that already conciliation proceedings regarding their transfer was pending before the Conciliation Officer and a failure report had also been sent to the State Government. Therefore, even before the State Government can decide the issue, the Management should not precipitate the matter by giving the charge memos. The transfer orders were not valid as it would amount committing 'unfair labour practice' set out under Section 2(ra) prescribed under V Schedule which is prohibited by Section 25T of the I.D. Act. When the workers tried to report at https://hcservices.ecourts.gov.in/hcservices/ the factory at Injambakkam, it was found that their time cards have been removed from the time office. The Management appointed an Enquiry Officer. It was on the basis of the enquiry proceedings, which was conducted on different dates, a finding was given by the Enquiry officer. Subsequently, second show cause notices were issued on 24.09.1998. After the workers' explanation, dated 01.10.1998 was received and considered, they were dismissed by orders dated 28.11.1998. 10. In the dismissal orders, it was stated that Standing Order 20 enabled the Management to transfer a worker from one Station to another or from one establishment to another or from one State to another provided the wages, grade, continuity and other condition of service are not adversely affected. In case of transfer from one state to another, reasonable notice should be given and reasonable joining time should be given. As the dismissals were made during the pendency of the I.D. No.100/1998 before the Industrial Tribunal, Chennai, the Management sought for express permission under Section 33(2)(b) of the I.D.Act for dismissing the workers. Those petitions were numbered as Approval Petition Nos.61 to 68 of 1998. But for reasons best known, the Management withdrew those applications on 04.04.2000, though it was claimed that it was without prejudice to their rights. At the time of withdrawal of the petitions for approval, the Industrial Dispute in I.D.No.100 of 1998 relating to legality of the transfers were still pending before the Tribunal and the trial was in progress. But, the Tribunal in the ID passed an Award only on 26.05.2000 and it held that the transfer orders were valid and the workmen are not entitled for any relief. 11. Therefore, the workmen filed a complaint under Section 33A of the I.D. Act against their dismissals done without approval. Their complaint was taken on file as Complaint No.1/2000 and notice was issued to the Management. The Management filed a counter statement on 03.07.2000. Unfortunately, even though the complaint was received by the Tribunal, the ID was separately tried and disposed of by the Industrial Tribunal on 26.05.2000. Thereafter, the enquiry into the complaint was continued by a subsequent Tribunal and after the trial in the complaint, an Award was passed on 22.06.2001 that too exactly after one year and one month. The Tribunal held that their dismissals were not justified. By the Award dated 22.06.2001 it held that the dismissal was void ab initio and the workmen were entitled to be reinstated with continuity of service. While the trade union came forward to challenge the award made in I.D.No.100 of 1998 dated 26.5.2000 in the first writ petition, the Management have come forward to challenge the Award made in Complaint No.1 of 2000 dated 22.6.2001 in the second writ petition. 12. In the Industrial Dispute (I.D.No.100 of 1998), on behalf of the Workmen one T.V.Shanmugham (who is the 6th respondent in W.P.No.17664 of 2001) was examined as W.W.1. It is now stated by the Management that the said worker had settled his claim and nothing survives in respect of his claim. This fact is not https://hcservices.ecourts.gov.in/hcservices/ seriously disputed by the learned counsel for the workmen. On behalf of the Management, no oral evidence was let in. While the Union filed 16 documents, which were marked as Exs.W1 to W16, the Management filed 12 documents, which were marked as Exs.M1 to M12. 13. The Tribunal held that the Management has got power to transfer the workmen from one station to another station. The Tribunal also appreciated the argument of the Management that if small groups of people are allowed to form separate trade unions, it will lead to multiplicity of unions and will hamper the administrative functions of the employers. The Tribunal also brushed aside the evidence of W.W.1 who stated that his school going daughter was threatened by two rowdies sent by the Management. It held that by mere filing of such complaints, it cannot be concluded that such rowdies were set up by the Management. It also held that Clause 20 of the Certified Standing Order applied to the case. Further the exhibit in Ex.M7 a letter from Karnataka Unit at Ilkal seeking for more skilled workers as there was shortage showed that there was no lack of bona fides in the action of the management. Since the service conditions of the workmen were not in any way affected, it held that the Court cannot sit on appeal over the administrative reasons for transfer and upheld the order of transfer. 14. In the complaint before the Tribunal, no oral evidence was let in on both sides. On the side of the workers, 17 documents were filed and were marked as Exs.W1 to W17. On the side of the Management, enquiry proceedings in respect of all the workers were filed and marked as Exs.M1 to M134. The Tribunal after referring to the pleadings of the parties found that there was no malafide in the order of transfer. The Tribunal was also made aware of the Award passed in I.D.No.100 of 1998 dated 26.05.2000 by which, the transfers were held to be valid. Though before the Tribunal, the Management after referring to the judgment of the Supreme Court reported in 1978 II LLJ 1 = (1978) 2 SCC 144 (Punjab Beverages Pvt. Ltd., v. Suresh Chand and another) contended that mere withdrawal of the approval petition can only give a cause of action for filing a compliant, but even on such complaint under Section 33A, the Tribunal will have to go into the merits of the dispute. Referring to Punjab Beverages case, the Tribunal held that notwithstanding the finding that there was no malafide regarding transfer, but the enquiry conducted by the Management was illegal since the workmen were not given subsistence allowance during the said period of their non-employment from September 1997 and till the date of dismissal on 28.11.1998, they were made to starve and therefore, they were unable to defend themselves in the enquiry and the denial of fair play will result in enquiry being held opposed to the rule of natural justice. For this purpose, the Tribunal also referred to the judgments reported in 1988 II LLN 260 and 1999 II LLN 640. Even after finding non compliance of Section 33 of the I.D. Act, the Tribunal went into the validity of the enquiry and held by a cryptic Award that the dismissals of the workmen were not valid. Hence, they were directed to be reinstated in service with all attendant benefits by its Award. https://hcservices.ecourts.gov.in/hcservices/ 15.When the matter came up for final disposal, this Court suggested certain terms for compromise between the parties. For that purpose, the matters were adjourned for more than three times. But parties are at variance and no compromise was possible. Hence the matters were heard at length. 16.An additional affidavit was also filed by the Management claiming that some of the workers concerned were employed elsewhere and they are being paid their last drawn wages under Section 17B of the I.D.Act. The Management was incurring losses due to stiff competition in the international market. Hence they wanted this court to take notice of these factors while passing final orders in the writ petitions. 17. Mr.A.L.Somayaji, learned Senior Counsel referred to a judgment of the Supreme Court reported in (2001) 2 SCC 289 [Addisons Paints and Chemicals Ltd. v. Workmen Represented by the Secretary (A.P. & C.) Assistants' Association and another] for contending that in case of transfer, the workmen should have reported for duty and could have raised a dispute thereafter and agitated the matter. In that case, the Supreme Court found that there was no justification for the workmen not reporting for duty at the transferred place. 18.In the present case, both Tribunals found there was no malafide in the orders of transfer. The evidence let in by the workmen in the ID was very weak and it did not throw light on the victimisation aspect of the transfers. It was only some of the office bearers have been transferred while others were retained. Therefore, those findings cannot be dislodged in a writ petition filed under Article 226 of the constitution. 19.But at the same time, during the pendency of the conciliation and adjudication in the Industrial Dispute in I.D.No.100 of 1998, the Management had proceeded with the enquiries and dismissed the workers. Though they had filed approval petitions in A.P.Nos.61 to 68 of 1998 seeking prior approval under Section 33(1)(b), for reasons best known, they withdrew those approval petitions. This had enabled the workmen to file a complaint under Section 33A of the I.D.Act as there was a clear case of contravention of Section 33(1)(b) of the I.D.Act. The complaint was held to be maintainable. 20. At the time when the Tribunal heard the complaint, the law that was prevailing was the judgment of the Supreme Court in Punjab Beverages case, wherein the Supreme Court held that even if there is infraction of provisions of Section 33, in a complaint under Section 33-A, the Tribunal was bound to go into the merits of the dispute and it cannot hold that violation of Section 33 will result in automatic restoration of service. This Award in I.D.No.100/98 of the Tribunal was dated 26.05.2000. The Award in complaint No.1 of 2000 was dated 22.06.2001. The judgment in Punjab Beverages case came to be overruled by a constitution Bench of the https://hcservices.ecourts.gov.in/hcservices/ Supreme Court, dated 17.01.2002 in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma reported in (2002) 2 SCC 244. In that case, the Supreme Court in paragraph 13 held as follows:- "13. The proviso to Section 33(2)(b), as can be seen from its very unambiguous and clear language, is mandatory. This apart, from the object of Section 33 and in the context of the proviso to Section 33 (2)(b), it is obvious that the conditions contained in the said proviso are to be essentially complied with. Further, any employer who contravenes the provisions of Section 33 invites a punishment under Section 31(1) with imprisonment for a term which may extend to six months or with fine which may extend to Rs 1000 or with both. This penal provision is again a pointer of the mandatory nature of the proviso to comply with the conditions stated therein. To put it in another way, the said conditions being mandatory, are to be satisfied if an order of discharge or dismissal passed under Section 33(2)(b) is to be operative. If an employer desires to take benefit of the said provision for passing an order of discharge or dismissal of an employee, he has also to take the burden of discharging the statutory obligation placed on him in the said proviso. Taking a contrary view that an order of discharge or dismissal passed by an employer in contravention of the mandatory conditions contained in the proviso does not render such an order inoperative or void, defeats the very purpose of the proviso and it becomes meaningless. It is well-settled rule of interpretation that no part of statute shall be construed as unnecessary or superfluous. The proviso cannot be diluted or disobeyed by an employer. He cannot disobey the mandatory provision and then say that the order of discharge or dismissal made in contravention of Section 33(2)(b) is not void or inoperative. He cannot be permitted to take advantage of his own wrong. The interpretation of statute must be such that it should advance the legislative intent and serve the purpose for which it is made rather than to frustrate it. The proviso to Section 33(2)(b) affords protection to a workman to safeguard his interest and it is a shield against victimization and unfair labour practice by the employer during the pendency of industrial dispute when the relationship between them is already strained. An employer cannot be permitted to use the provision of Section 33(2)(b) to ease out a workman without complying with the conditions contained in the said proviso for any alleged misconduct said to be unconnected with the already pending industrial dispute. The protection afforded to a workman under https://hcservices.ecourts.gov.in/hcservices/ the said provision cannot be taken away. If it is to be held that an order of discharge or dismissal passed by the employer without complying with the requirements of the said proviso is not void or inoperative, the employer may with impunity discharge or dismiss a workman." 21.But unfortunately, the judgment of the Jaipur Zila Case was not available before the subsequent Tribunal. Hence, it was forced to go into the merits of the case and rendered a finding. It found since workmen were kept out of employment for more than one year without any allowance, they were unable to defend themselves in the enquiry. But all these exercise was unnecessary. Both the Tribunals while passing Awards in the ID and the complaint fell into error by attempting to go into the so called merits of the case. Even while doing that exercise, the second Award of the Tribunal was not satisfactory as by a one paragraph, it had concluded the issue. 22.However in view of the authoritative pronouncement of the constitution Bench of the Supreme Court in Jaipur Zila case (cited supra), it is unnecessary to go into the merits of the dismissals since infraction of Section 33 (in the present case 33 (1)(b)) will clearly make such orders void ab initio. As regarding going into the merits of the case in Jaipur Zila case, it was observed in paragraphs 14 to 16 which are 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 the 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 relationship of the 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 https://hcservices.ecourts.gov.in/hcservices/ 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 the 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 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. 15.The view that when no application is made or the one made is withdrawn, there is no order of refusal of such application on merit and as such the order of dismissal or discharge does not become void or inoperative unless such an order is set aside under Section 33-A, cannot be accepted. In our view, not making an application under Section 33(2)(b) seeking approval or withdrawing an application once made before any order is made thereon, is a clear case of contravention of the proviso to Section 33(2)(b). An employer who does not make an application under Section 33(2)(b) or withdraws the one made, cannot be rewarded by relieving him of the statutory obligation created on him to make such an application. If it is so done, he will be happier or more comfortable than an employer who obeys the command of law and makes an application inviting scrutiny of the authority in the matter of granting approval of the action taken by him. Adherence to and obedience of law should be obvious and necessary in a system governed by rule of law. An employer by design can avoid to make an application after dismissing or discharging an employee or file it and withdraw before any order is passed on it, on its merits, to take a position that such order is not inoperative or void till