SCA/21974/2007 1/14 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 21974 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE H.K.RATHOD ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= AHMEDABAD MUNICIPAL TRANSPORT SERVICE - Petitioner(s) Versus BUDHABHAI ATMARAM - Respondent(s) ========================================================= Appearance : MR HS MUNSHAW for Petitioner(s) : 1, MR BIREN A VAISHNAV for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE H.K.RATHOD Date : 04/04/2008 ORAL JUDGMENT : 1. Heard learned Advocate Mr. HS Munshaw for the petitioner and Mr. BA Vaishnav, learned Advocate for the respondent. 2. This court has, by order dated 18.3.08, suggested to the Transport Service to pay the retirement benefits to the respondent workman considering the workman on duty during the SCA/21974/2007 2/14 JUDGMENT interim period. Transport Service is prepared to accept the suggestion made by this court but not prepared to pay the back wages for the interim period of about ten years. Learned Advocate Mr. BA Vaishnav for the workman is not agreeing to this suggestion because workman has not given consent to forego the back wages for interim period. In view of that, the matter has been taken up for hearing by this court on merits. 3. Through this petition under Article 227 of the Constitution of India, the petitioner AMTS has challenged the order of the Industrial Tribunal in Approval Application NO. 185 of 1997 in Reference (IT) NO. 433 of 1992 dated 5.4.07 wherein the tribunal has rejected the application for approval filed by the petitioner under section 33-2-b of the ID Act, 1947. 4. Learned Advocate Mr. HS Munshaw appearing for the petitioner submitted that the respondent was remaining absent from duty with effect from 16.4.94 and, therefore, respondent was served with charge sheet and after completion of the departmental inquiry against him, he was dismissed from service on 23.4.1997. He submitted that one month notice pay was given by the Transport Service and industrial dispute was pending before the Industrial Tribunal wherein the workman is concerned and, therefore, approval application was filed by the petitioner under section 33-2-b of the ID Act, 1947 before the Tribunal and as the tribunal refused to approve the action and rejected the application for approval, present petition has been filed by the petitioner before this court. . 5. He submitted that the Tribunal has committed gross error in rejecting the approval application because the workman was reinstated during the pendency of inquiry on 5.9.1994 and, thereafter, departmental inquiry was completed by another inquiry officer and that does not vitiate the departmental inquiry. He further submits that the residential address of the workman was not available with the petitioner and, therefore, there was six days delay in sending the money order of one month wages to the workman and that cannot become a ground for SCA/21974/2007 3/14 JUDGMENT rejection of the approval application because he was residing in a small village. He further submitted that the tribunal has not come to proper conclusion as to how much amount is less towards monthly wages which was given by the petitioner to the workman and even the workman has also not pointed out how much less amount has been paid by the petitioner to the workman. He also submitted that the reasoning given by the Tribunal is incorrect from record and transport service has complied with the provisions of sec. 33-2-b of the ID Act, 1947 and yet on wrong ground, the tribunal has rejected the application for approval. He submitted that in view of the the rejection of the approval application, respondent workman has to be considered to be in service for all purposes looking to the legal provisions and, therefore, transport service has to pay full back wages of 10 years to the workman which amounts to heavy financial burden upon the transport service and, therefore, the tribunal ought not to have rejected the approval application. Except these submissions, no other submission was made by learned Advocate Mr. Munshaw for the petitioner and no decision was cited by him in support of the aforesaid submission. 6. On the other hand, learned Advocate Mr. BA Vaishnav appearing for the respondent workman has submitted that the workman has reached the age of superannuation on 1st June, 2007. He submitted that the Tribunal has rightly come to the conclusion that during the pendency of inquiry, workman was not suspended but on 5th September, 1994, one inquiry Officer Mr. Brahmbhatt who had examined the petitioner had, after his examination, at the end of his examination, chit was given to the workman by the Depot Superintendent to reinstate him in service and accordingly, the workman was taken back in service and thereafter, it was not mentioned that during the pendency of inquiry, he was taken back in service and after about one year, all of a sudden, by another departmental inquiry officer, departmental inquiry was held SCA/21974/2007 4/14 JUDGMENT against the workman and, therefore, the tribunal was right in considering that the inquiry has been vitiated. He also submitted that under section 33-2-b of the ID Act, 1947, payment of the full amount of one month salary simultaneously is must and non compliance of such mandatory provision itself is enough for the tribunal to reject an application for approval. As per his submission, in this case, one month notice pay was not paid to the workman in time and the payment made was also less than one month notice pay and, therefore, tribunal has rightly rejected the approval application and in doing so, tribunal has not committed any error requiring interference of this court in exercise of the powers under Article 227 of the Constitution of India. 7. I have considered the submissions made by learned Advocate Mr. Munshaw as well as Mr. Vaishnav on behalf of both the parties. I have also perused the order of the Tribunal rejecting approval application. Looking to the facts as emerging from the record, the charge sheet was served on the workman as he remained absent with effect from 16.4.94 and thereafter, workman was intimated to report for duty on 11th May, 1994 but he was not reporting because registered Post AD Notice dated 21st May, 1994 was refused by the workman and accordingly, it had returned back to the petitioner transport service. Thereafter, he continued to remain absent, therefore, the workman was served with the charge sheet on 2nd September, 1994 and on 18.6.1996, second show cause notice was served which was replied by the workman on 2nd July, 1996 and, thereafter, he was dismissed from service by order dated 23.4.1997. Industrial Tribunal has considered the evidence of one Mavhavlal Himatlal Shah Exh. 8 who was examined on behalf o the transport service wherein it was stated by him before the tribunal that he was inquiry officer and he conducted departmental inquiry with effect from 28th February, 1996 but what has happened with the previous inquiry with effect from 5.9.1994, he was not aware about the same because that inquiry was conducted by another inquiry officer SCA/21974/2007 5/14 JUDGMENT Mr. Brahmbhatt and no record was produced by the transport service before the inquiry officer about remaining absent repeatedly and thereafter, on behalf of the transport service, one Mr.Goswami was examined before the Inquiry Officer and no statement was given by the workman means defence statement of workman was not recorded and ultimately, as per page 25, finding was given by him and thereafter, what happened to the departmental inquiry, he was unaware about the same. On behalf of the workman, nobody was examined before the Industrial Tribunal. Ultimately, the Tribunal has considered the submissions made by both the learned Advocates and in paragraph 9 of the order, reasoning has been given by the Tribunal. Whether the reasonable opportunity of hearing was given to the delinquent workman or not, that aspect has been examined by the tribunal in detail. Charge sheet dated 2nd September, 1994 Exh.14 was produced which was replied by the workman on 3rd September, 1994. On 5th September, 1994, during the pendency of inquiry, who was inquiry officer has asked certain questions to the workman which were replied by the workman and below that statement, signature of the workman was obtained and there is also signature of the inquiry officer. On the same day, it was decided to take him back in service on 5.9.94. Accordingly, DTA had passed order giving chit to the workman and that chit was issued by the Depot Superintendent. On 5th September, 1994, after asking certain questions to the workman and after completion of inquiry, signature of the workman was obtained and it was also signed by the said inquiry officer. That means the chapter of enquiry was closed. It was not made clear whether while giving chit to the workman for taking him back in service, departmental inquiry was yet remaining pending or not, Workman was not informed about the status of inquiry, whether it had remained pending or dropped. However, the workman had accepted the chit and accordingly he resumed on the basis of chit dated 5.9.1994. Thereafter, on 28th February, 1996, another inquiry officer Mr. Shah SCA/21974/2007 6/14 JUDGMENT conducted the inquiry in respect of the same charge against the workman. On behalf of the Transport Service, said second inquiry officer Mr. Shah was examined before the tribunal vide Exh. 8. He had conducted the inquiry against the workman and proceedings were noted by him and ultimately, Industrial Tribunal has considered the evidence of Mr. Shah who was not aware about the earlier inquiry dated 5.9.1994. In light of this fact, the Tribunal has come to the conclusion that when one inquiry against the workman was over on 5.9.94, where the signature of the workman and inquiry officer were obtained and workman was taken back in service, then, nothing was obtained about the status of inquiry, whether it is over or pending and the workman was taken back in service. Thereafter, all of a sudden, by different inquiry officer, in respect of the same charge, departmental inquiry was conducted against the workman on 28.2.96which has been considered as contrary to the principles of natural justice by the tribunal in the impugned order. Tribunal has come to the conclusion that such kind of departmental inquiry against the workman is bad and illegal and, thereafter, tribunal has considered one important aspect of the matter that the order of dismissal is dated 23.4.1997 whereas one month wages were sent on 30.4.1997 which was produced vide Exh. 20 and therefore, simultaneously, notice pay was not paid to the workman and that was an undisputed fact as emerging from the record and that aspect has also not been disputed by the petitioner even before this Court. Over and above that, one contention raised by the workman was that the notice pay sent to the workman by money order was not complete amount of one month notice pay and in light of that, it was the burden on the transport service to prove by leading proper evidence that the complete amount of one month notice pay was paid to the workman as provided under the Act but no documentary evidence was produced and proved by the transport service before the tribunal to that effect, therefore, tribunal has rightly come to the conclusion that SCA/21974/2007 7/14 JUDGMENT complete amount of one month notice pay was not paid to the workman by the petitioner simultaneously while issuing order of dismissal against the workman. 8. Provisions of section 33 (2) (b) of the ID Act, 1947 are mandatory in nature. Said provisions require three actions simultaneously. Industrial Tribunal has jurisdiction to consider the application for approval of the action under section 33 (2) (b) of the ID Act, 1947 while keeping in mind three conditions and then to consider as to whether these three conditions are satisfied or not. One is the dismissal order. Second is the approval application and third is payment of one month wages to the workman. These three conditions must be the part of one transaction, meaning thereby, that the date of approval application, date of dismissal and date of payment of one month notice pay/wages should be simultaneous as one transaction. Breach of any one of these conditions is enough for the industrial Tribunal to reject the approval application under sec. 33(2)(b) of the ID Act, 1947 [See : (1) 1998- III-LLJ page 398 Andhra Padesh (2) 1967-I-LLJ 637 Bombay; (3) 1995 III LLJ (Supplement) 571 Bombay; (4) 1993 III LLJ (Supplement) 589 Bombay; (5) 1982-II LLJ page 17 Rajasthan; (6) 1974-II LLJ page 176 Kerala and (7) 1993 III LLJ (Supplement) page 1 Bombay]. 9. Powers of the Industrial Tribunal while dealing with the approval application have been examined by the Hon'ble apex court in Lalla Ram v. Management of DCM Chemical Works Ltd. and Another, reported in AIR 1978 SC 1004. In the said judgment, the apex court has observed as under in para 12 of the judgment: “12. The position that emerges from the above quoted decisions of this Court may be stated thus : In proceedings under S. 33 (2) (b) of the Act, the jurisdiction of the Industrial Tribunal is confined to the enquiry as to (i) whether a proper domestic enquiry in accordance with the relevant rules/Standing Orders and principles of natural justice has SCA/21974/2007 8/14 JUDGMENT been held; (ii) whether a prima facie case for dismissal based on legal evidence adduced before the domestic tribunal is made out; (iii) whether the employer had come to a bona fide conclusion that the employee was guilty and the dismissal did not amount to unfair labour practice and was not intended to victimise the employee regard being had to the position settled by the decisions of this Court in Bengal Bhatdee Coal Co. v. Ram Probesh Singh, (1964) 1 SCR 709 : (AIR 1964 SC 486) : Titaghur Paper Mills Co. Ltd. v. Ram Naresh Kumar (1961) 1 Lab LJ 511) (SC); Hind Construction and Engineering Co. Ltd. v. Their Workmen, (1965) 2 SCR 83 : AIR 1965 SC 917; Workmen of Messrs Firestone Tyre and Rubber Company of India (P.) Ltd. v. Management, (1973) 3 SCR 587 : AIR 1973 SC 1227, and Eastern Electric and Trading Co. v. Baldev Lal, 1975 Lab IC 1435 : (AIR 1975 SC 1892) that though generally speaking the award of punishment for misconduct under under the Standing Orders is a matter for the management to decide and the Tribunal is not required to consider the propriety or adequacy of the punishment or whether it is excessive or too severe yet an inference of mala fides may in certain cases be drawn from the imposition of unduly harsh, severe, unconscionable or shockingly disproportionate punishment; (iv) whether the employer has paid or offered to pay wages for one month to the employee and (v) whether the employer has simultaneously or within such reasonably short time as to form part of the same transaction applied to the authority before which the main industrial dispute is pending for approval of the action taken by him. If these conditions are satisfied, the Industrial Tribunal would grant the approval which would relate back to the SCA/21974/2007 9/14 JUDGMENT date from which the employer had ordered the dismissal. If however, the domestic enquiry suffers from any defect or infirmity, the labour authority will have to find out on its own assessment of the evidence adduced before it whether there was justification for dismissal and if it so finds it will grant approval of the order of dismissal which would also relate back to the date when the order was passed provided the employer had paid or offered to pay wages for one month to the employee and the employer had within the time indicated above applied to the authority before which the main industrial dispute is pending for approval of the action taken by him.” 10.In the present case, the petitioner Transport Service has failed to satisfy the Industrial Tribunal that it has made compliance of the aforesaid three conditions simultaneously. Monthly wages which were paid were not complete amount and, therefore, mandatory provision of sec. 33(2)(b) of the ID Act was violated by the petitioner. Departmental inquiry was also not properly conducted by the petitioner. On 5th September, 1994, inquiry officer Mr. Brahmbhatt had examined the workman and after asking certain questions to the workman that the inquiry comes to an end, workman was taken back in service and at that time, it was not kept open to hold fresh inquiry on the same charge and yet, after one year period, another inquiry officer Mr.Shah initiated inquiry against the workman in connection with the same charge and the amount paid by the petitioner as one month notice pay by money order was belatedly paid which is also clear from the record and, therefore, there was non compliance of mandatory provisions of sec. 33(2)(b) of the ID Act, 1947. It was also violative of the basic principles of natural justice. Inquiry by two separate inquiry officers in respect of one and the same charge is also violative of the basic principles of SCA/21974/2007 10/14 JUDGMENT natural justice, therefore, tribunal has rightly rejected the approval application because date of dismissal is 23.4.97 whereas the amount of one month notice pay was sent by the petitioner to the workman on 30.4.97 and that too was short and not complete amount as held by the tribunal. From the record itself, it is becoming clear that after dismissing the workman on 23.4.97, one month notice pay was sent to him by money order on 30.4.97. Therefore, Tribunal has rightly rejected approval action filed by the petitioner and same does not require any interference of this court in exercise of the powers under Article 227 of the Constitution of India. 11.As regards the submission of learned Advocate Mr.Munshaw that the payment of ten years back wages to the workman would create unnecessary financial burden upon the petitioner Transport Service, and, therefore, some clarification in that regard should be made. If the petitioner transport service has violated mandatory provisions of section 33(2)(b) of the ID Act, then, question of heavy financial burden of back wages on the petitioner is totally irrelevant for the Court because the Court cannot pass any order in violation of the mandatory provisions of sec. 33 (2) (b) of the ID Act, 1947 as per the law laid down by the larger Bench of the Hon'ble Apex Court in Jaipur Jilla Sahakari Bhoomi Vikas Bank Ltd. reported in 2002 2 SCC 244.In the said decision, the apex court has held that the mandatory provisions must have to be complied with by the employer in case when the workman is dismissed from service and at that time, industrial dispute is pending before the tribunal, then, approval application must have to be filed in time with simultaneous compliance of said three conditions as one transaction and if the approval application is rejected, then, order of dismissal is not approved by the tribunal and whatever consequences thereof arising, that must have to be followed in accordance with law. The workman has remained out of job for a period of about ten years and while facing unemployment, he SCA/21974/2007 11/14 JUDGMENT approached the age of retirement and, therefore, in view of these facts and non compliance of mandatory provisions by the petitioner in particular, contention raised by learned Advocate Mr. Munshaw is not acceptable and the same is, therefore, rejected. 12.The Apex Court has recently considered identical case in United Bank of India versus Siddharth Chakraborty reported in (2007) 7 SCC 670. Para 6 and 7 are quoted as under: “6. In Jaipur Zila case [(2002) 2 SCC 244 : 2002 SCC (L&S)279] it was inter- alia observed as follows:(SCC pp 252-53, para 13) "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 SCA/21974/2007 12/14 JUDGMENT 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 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 SCA/21974/2007 13/14 JUDGMENT 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 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." 7. As has been noted in the said judgment, the proviso to Section 33(2)(b) of the Act affords protection to a workman to safeguard his interest and it is in the nature of a shield against victimization and unfair labour practice by the employer during pendency of an industrial dispute. That being so, the judgment of the learned Single Judge as affirmed by the Division Bench does not suffer from any infirmity. “ See : 2007 Lab IC 2947 Delhi; 2007 (6) Supreme 3; 2007 III LLJ 289 Bombay; 2008 I CLR 148 Delhi. SCA/21974/2007 14/14 JUDGMENT 13.In view of the above observations, and after considering the reasoning given by the tribunal while rejecting the approval application, according to my opinion, tribunal has rightly examined the matter and has been right in rejecting the approval application. Reasons recorded by the tribunal and conclusions drawn by it