IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.7.2011 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.10498 of 2011 V.Gopu .. Petitioner Vs. 1. The Management Tamil Nadu State Transport Corporation Limited, Villupuram. 2. The Presiding Officer Labour Court Cuddalore. .. Respondents PRAYER: Petition under Article 226 of the Constitution of India for issue of writ of Certiorari to call for the records in C.P.No.10 of 2006 on the file of the second respondent/Labour Court, Cuddalore dated 5.1.2011 and quash the same. For Petitioner : Mr.R.Muralidharan For Respondents : Mr.T.Chandrasekaran for 1st respondent ORDER The writ petition is filed by the petitioner challenging the order of the second respondent/Labour Court in C.P.No.10 of 2006, dated 5.1.2011. By the impugned order, the Labour Court dismissed the claim petition filed by the petitioner/workman. 2. When the matter came up on 26.4.2011, this Court admitted the writ petition and ordered notice to the first respondent/State owned Transport Corporation. On notice, Mr.T.Chandrasekaran, learned counsel appears for the first respondent. 3. The petitioner, who was working as a Helper in the first respondent/Corporation, was dismissed from service by an order dated 14.1.2004. As at that time conciliation was pending before the Commissioner of Labour, Chennai with reference to the bonus and incentive bonus, the first respondent/Management filed an approval petition under Section 33(2)(b) of the Industrial Disputes Act, 1947 (for brevity, "the Act") seeking permission of the said officer. The https://hcservices.ecourts.gov.in/hcservices/ said approval petition was taken on file by the Conciliation authority as approval petition No.43 of 2004. The authority, after notice to the petitioner/workman, dismissed the petition by order dated 1.8.2005 and refused to grant approval. The authority found that, while dismissing the petitioner, the first respondent did not come to a bona fide conclusion that he was guilty of the misconduct and the action of the first respondent would amount to unfair labour practice and was intended to victimise the petitioner. Further, they had also not complied with the mandatory condition precedent provided under Section 33(2)(b) of the Act regarding the payment of one month's wages in lieu of notice. 4. It transpires that the first respondent/Management filed a writ petition before this Court, being W.P.No.4195 of 2006. When the matter came up for admission, they initially got interim order. Subsequently, after notice to the petitioner, this Court by an order dated 19.4.2007 directed the first respondent/Corporation to either pay monthly wages in terms of Section 17-B of the Act or consider his reinstatement. Subsequently, the petitioner was reinstated by an order dated 23.11.2007 and that was done without prejudice to the writ petition filed by the first respondent. 5. It is now claimed that the petitioner is in service. But since the wages for the period of unemployment, viz., from the date of dismissal till the restoration of service, were not paid, the petitioner filed an application under Section 33-C(2) of the Act on 13.2.2006 before the second respondent/Labour Court claiming wages for the said period. The said application was taken on file as C.P.No.10 of 2006 and notice was ordered to the first respondent. 6. In the meanwhile, the main writ petition filed by the first respondent came up for final disposal before this Court. This Court, by order dated 18.9.2009, dismissed the writ petition and confirmed the order of the authority. Though it is now claimed by Mr.T.Chandrasekaran that a defective appeal is filed, he fairly admits that the matter is yet to come up for hearing. 7. In the meanwhile, before the Labour Court, the first respondent filed a counter affidavit stating that in view of the pendency of the writ petition, the claim made by the workman was not valid and therefore, the petition should be dismissed. 8. Before the second respondent/Labour Court, the petitioner had examined himself as P.W.1. On the side of the first respondent/ Management, the Office Superintendent – one K.Rajendiran was examined as R.W.1. 9. The Labour Court, on a curious reasoning, dismissed the claim petition. According to the Labour Court, the dismissal order dated https://hcservices.ecourts.gov.in/hcservices/ 14.1.2004 was not set aside by the competent authority and therefore, the order is still in force and in order to have a claim for back-wages there must be a pre-existing right and since the dismissal order is still in force, the workman cannot claim any amount. Though the final order passed by this Court in W.P.No.4195 of 2006, dated 18.9.2009 was brought to the notice of the Labour Court, yet the Labour Court held there was no formal order removing the dismissal from record. 10. It must be noted that the basic principle relating to the industrial law has not been understood by the second respondent/Labour Court. When an employee is sought to be dismissed from service and if the matter is covered by Section 33 of the Act, then it is incumbent upon the employer to seek approval from the Conciliation Officer before whom the conciliation is pending or before the adjudicating authority in case any dispute is pending before the said Court. In either way, the appropriate authority or the Court is entitled to decide whether the dismissal was legal and proper. If the authority refuses to grant permission, the status of the workman is one step better than the person whose case was adjudicated by the Court. The Supreme Court has held in more than one judgment that in such cases, it has to be treated as if there was no dismissal in force. 11. A Constitutional Bench of the Supreme Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma and others, [2002] 2 SCC 244 dealt with the scope of an approval petition under Section 33(2)(b) of the Act and held that the provision is mandatory and if the employer does not seek permission from the competent authority, then the order of termination becomes void ab initio and the worker need not even ask for setting aside such order and straight-away claim back-wages before the appropriate authority. In this context, it is necessary to refer to paragraphs [13], [14] and [15] of the said judgment: "13. ...... 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 the said provision cannot be taken away. If it is to be held that an order of discharge or dismissal passed by the https://hcservices.ecourts.gov.in/hcservices/ 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. 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 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 https://hcservices.ecourts.gov.in/hcservices/ 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 it is set aside under Section 33-A notwithstanding the contravention of Section 33(2)(b) proviso, driving the employee to have recourse to one or more proceedings by making a complaint under Section 33-A or to raise another industrial dispute or to make a complaint under Section 31(1). Such an approach destroys the protection specifically and expressly given to an employee under the said proviso as against possible victimization, unfair labour practice or harassment because of pendency of industrial dispute so that an employee can be saved from hardship of unemployment." https://hcservices.ecourts.gov.in/hcservices/ 12. Unfortunately, the second respondent/Labour Court was not posted with the authoritative pronouncement of the Supreme Court on the said subject. 13. In the light of the above, the impugned order of the Labour Court stands set aside and the claim petition in C.P.No.10 of 2006 stands restored to the second respondent/Labour Court. The second respondent is hereby directed to proceed with the hearing of the claim petition after due notice to the parties and, in any event, complete the determination of the claim within a period of three months from the date of receipt of a copy of a copy of this Court. Even otherwise, as rightly held by the Supreme Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. case, supra, the first respondent/Corporation knowing fully well the legal principles instead of not driving the workman for a further process of computing are well advised to settle the back-wages to the workman and the first respondent is hereby directed to compute the amount due to the petitioner within four weeks and pay the amount to the petitioner and if thereafter the petitioner is still aggrieved, he can make an appropriate modification in the claim petition and claim the amount of difference that is due to him. This writ petition is allowed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar sasi To: 1.The Presiding Officer Labour Court Cuddalore. 2. The Management Tamil Nadu State Transport Corporation Limited, Villupuram. +1cc to MR.T.Chandrasekaran, Advocate Sr 45117 RSY(CO) km/27.7. W.P.No.10498 of 2011 https://hcservices.ecourts.gov.in/hcservices/