IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 24.11.2009 CORAM THE HONOURABLE Mr. JUSTICE K.CHANDRU W.P.Nos.18367, 18368 of 2008, 544 to 550 of 2009, 8181 to 8196 of 2009, 16630 to 16633 of 2009 and M.P.No.1 in W.P.Nos.18367, 18368 of 2008 and 16630 to 16633 of 2009 and M.P.No.2 in W.P.No.544 to 556 of 2009 K.Balaraman .... Petitioner in WP 18367/2008 P.Haridoss ..Petitioner in WP 18368/2008 N.Alfan-de-lara ..Petitioner in WP 544/2009 D.Mani ..Petitioner in WP 545/2009 K.Sundaramurthy ..Petitioner in WP 546/2009 T.Ganapathy ..Petitioner in WP 547/2009 T.Murthy ..Petitioner in WP 548/2009 P.Krishnan ..Petitioner in WP 549/2009 M.Murugan ..Petitioner in WP 550/2009 R.Kumar ..Petitioner in WP 8181/2009 R.Angamuthu ..Petitioner in WP 8182/2009 N.Shanmugam ..Petitioner in WP 8183/2009 K.Chinnappan ..Petitioner in WP 8184/2009 G.Vijayakumaran ..Petitioner in WP 8185/2009 G.Srinivasan ..Petitioner in WP 8186/2009 E.Mahalingam ..Petitioner in WP 8187/2009 https://hcservices.ecourts.gov.in/hcservices/ G.Elumalai ..Petitioner in WP 8188/2009 G.Sundaravel ..Petitioner in WP 8189/2009 M.Kumar ..Petitioner in WP 8190/2009 K.Ramadass ..Petitioner in WP 8191/2009 R.Balasubramanian ..Petitioner in WP 8192/2009 A.Mohamed Abdul Khadar ..Petitioner in WP 8193/2009 D.Kubendran ..Petitioner in WP 8194/2009 K.Sankara Narayanan ..Petitioner in WP 8195/2009 G.Punniyakotti ..Petitioner in WP 8196/2009 V.Anandan ..Petitioner in WP 16630/2009 K.Louisa ..Petitioner in WP 16631/2009 A.Kadirvel ..Petitioner in WP 16632/2009 E.Ranganathan ..Petitioner in WP 16633/2009 Vs. 1.The Managing Director, Metropolitan Transport Corporation Limited, Anna Salai, Pallavan Illam, Chennai-600 002. 3.The General Manager/Joint Managing Director, Metropolitan Transport Corporation Limited, Pallavan Salai, Pallavan Illam Chennai-600 002. ..Respondents in WP 18367,18368/2008, WP 544 to 550/2009 https://hcservices.ecourts.gov.in/hcservices/ The Joint Managing Director/ General Manager, Metropolitan Transport Corporation Annasalai, Pallavan Illan,Chennai-600 002. ..Respondent in WP 8181/2009,8182/2009,8183/2009, 8184/2009,8185/2009,8186/2009, 8187/2009,8188/2009, 8189/2009, 8190/2009,8191/2009,8192/2009, 8193/2009,8194/2009,8195/2009, 8196/2009. 1.The Joint Commissioner of Labour (Conciliation) Office of the Commissioner of Labour, Teynampet, Chennai-600 006. 2.The Managing Director, Metropolitan Transport Corporation Ltd., Annasalai Pallavan Illam, Chennai -600 002. 3.The Joint Managing Director, Metropolitan Transport Corporation Ltd., Anna Salai, Pallavan Illam,Chennai -600 002. ..Respondents in WP 16630/2009 1.The Joint Commissioner of Labour (Conciliation), Office of the Commissioner of Labour, D.M.S Complex -Teynampet,Chennai-600 006. 2.The General Manager (Administration)/ The Joint Managing Director, Metropolitan Transport Corporation, Anna Salai, Pallavan Illam,Chennai 600 002. ..Respondent in WP 16631/2009,16632/2009, 16633/2009 Prayer in W.P.No.18367/08: Writ Petition has been filed under Article 226 of The Constitution of India for the issuance of writ of certiorarified Mandamus, calling for the entire records connected with the proceedings No.10807/sa.pi(O.Na)1/MTC/2007 dated 10.7.2008 of the 1st respondent confirming the order No.10807/sa.pi(O.Na)1/MTC/2007 dated 8.1.2008 of the 2nd respondent and quash the same, consequently, direct the respondent to reinstate the petitioner with continuity of service, all other attendant benefits and full back wages. https://hcservices.ecourts.gov.in/hcservices/ WP No.18368/2008: Writ Petition filed under Article 226 of the constitution of India to issue a writ of Mandamus calling for the entire records connected with the proceedings No. 11272/Sa.Pi (O.Na)1/MTC/2007 dated 10.07.2008 of the 1st respondent confirming the order No. 11272/Sa.Pi(O.Na) 1/MTC/2007 dated 24.01.08 of the 2nd respondent and quash the same consequently direct the respondent to reinstate the petitioner with continuity of service all other attendant benefits and full back wages. WP No.544/2009: Writ Petition filed under Article 226 of the constitution of India to issue a writ of certiorarified Mandamus calling for the entire records connected with the proceedings No.9860/sa.pi(O.Na) 7/MTC/2007 dt 28.3.2008 of the 2nd respondent and quash the same consequently direct the respondent to reinstate the petitioner with continuity of service all other attendant benefits and full back wages. WP No.545/2009 to WP 550/2009: Writ Petition filed under Article 226 of the constitution of India to issue a writ of Certiorarified Mandamus calling for the entire records connected with the proceedings No. 9082,15086,31713,16623,32212,17988/sa.pi (O.Na) 1,2,12,1,16,6/MTC/2007/2006/2005 dt 10.12.2007,14.8.2007, 5.6.2008, 21.11.2007, 16.7.2007, 21.1.2008 of the 2nd respondent and quash the same consequently direct the respondent to reinstate the petitioner with continuity of service all other attendant benefits and full back wages. WP No.8181/2009 to WP 8196/2009: Writ Petition filed under Article 226 of the constitution of India to issue a writ of Certiorarified Mandamus calling for the entire records connected with the proceedings Nos. 15144,11547,9112,8883, 9747, 17318, 9196, 14609, 10960, 18280, 9879, 8765, 18378, 8736, 8847, 9090/sa.pi(O.Na)15, 7, 8, 10, 15, 17, 4, 1, 6, 21, 14, 7,1,1, and 8/MTC/2006 -2007,dt. 07.08.2007, 26.5.2008, 30.7.2007, 8.2.2008,26.12.2007,27.7.2007,14.11.2007,20.3.2008,5.5.2008,9.10. 2007,26.12.2007,17.6.2008,5.5.2008,28.3.2008 24.1.2008 and 14.3.2008 of the respondent and quash the same consequently direct the respondent to reinstate the petitioner with continuity of service all other attendant benefits and full back wages. WP No.16630/2009 to WP 16633/2009: Writ Petition filed under Article 226 of the constitution of India to issue a writ of certiorarified Mandamus calling for the entire records connected with the proceedings No. 11253,12900,10644 and 19191/ sa.pi(O.Na) 6,1,6 and 8/ MTC / 2007,2008 dated 11.06.08,22.12.2008,7.5.2008 and 9.2.2009 of the 2nd respondent and quash the same https://hcservices.ecourts.gov.in/hcservices/ consequently direct the 2nd respondent to reinstate the petitioner with continuity of service all other attendant benefits and full back wages. For Petitioners in all the W.Ps. : Mr.S.T.Varadarajulu For Joint Commissioner of Labour : Mr.R.Neelakandan, G.A. (Conciliation), Chennai-6 For Respondents : Mr.Munirathinam for Transport Corporation C O M M O N O R D E R Heard Mr.S.T.Varadarajulu, learned counsel appearing for the petitioners and Mr.R.Neelakandan, Government Advocate for Labour Department and Mr.Munirathinam, learned counsel takes notice for the Transport Corporation. 2. In all these writ petitions, the petitioners are employees of the respondent Transport Corporation, which is a wholly owned Government Company. The grievance of the petitioners was that they were dismissed for a misconduct by the respondent Corporation. In some cases, they have also filed appeal before the Managing Director of the Corporation which have been rejected. When the order of dismissal came to be passed against various petitioners, who were dismissed for different misconducts, it was stated that there was a conciliation pending before the Special Deputy Commissioner of Labour, Chennai. 3. The said dispute was raised through of a Strike Notice dated 7.7.2007, which was issued by the State Transport Employees Union. The strike was with reference to the demand for confirming the temporary and daily wages workers, grant of duty on the basis of seniority on rotational basis and for the casual labourers to be granted bonus. 4. According to the petitioners, the Union enclosed Form No.O prescribed under Rule 59(1) of the Tamil Nadu Industrial Dispute Rules to go on strike with effect from 21.7.2007 or on any other date. The strike notice was given in terms of 21(c) of the Industrial Disputes Act. Pursuant to the strike notice, it was stated that the Conciliation Officer, namely, the Labour Officer-II, Chennai-108 had requested the Trade Union to appear before the said Officer. Subsequently, the matters were kept posted for several days. The respondent Corporation has also filed its Counter statement dated 3.12.2007 justifying the denial of work to the workmen. In the light of these developments, the https://hcservices.ecourts.gov.in/hcservices/ contention of the petitioners are that in view of Section 33(2) (a) and 33(2)(b) of the Industrial Disputes Act, the respondent Management ought to have sought for their approval before the Conciliation Officer. Inasmuch as such no post approval was obtained, their termination is void abinitio and that they are deemed to be in service. In that premises, they had filed the present Writ Petitions. In all the affidavits, similar grounds were taken. 5. According to the petitioners, once a strike notice is issued by the Union by virtue of Section 22 of the I.D.Act, Conciliation is deemed to have commenced and since no failure report was sent by the Conciliation Officer, the Conciliation is deemed to be pending even now. When once such a conciliation is pending there for any penalty for any misconduct not connected with the dispute, the employer has to seek approval under Section 33(2)(b) of the I.D. Act. Therefore, the petitioner submitted that a Constitution Bench of Supreme Court vide its judgment reported in Jaipur Zila Sahakari Bhoomi Vikas Bank Limited vs. Ram Gopal Sharma and Others, 2002(1) L.L.N.639= 2002(2) SCC 244 had interpreted the said provision and held that if an employer do not make any application under Section 33(2)(b) of the I.D. Act, there is no necessity for the employee to file a complaint under Section 33A or to raise any industrial dispute under the I.D.Act. If they were forced to go for such remedies, such an approach will destroy the protection specifically and expressly given to the employee under S.33(2) (b) and thus the section was intended to save the workmen from the hardship of unemployment. Therefore, the petitioners contended inasmuch as there is a dispute pending before the Conciliation Officer and no post approval was sought for in respect of the dismissal of the petitioners, the order of dismissal is void or inoperative. In the very same judgment, the Supreme Court has stated that where there is a non-compliance of proviso of Section 33(2)(b), then the workman is deemed to be in service, entitled for all the benefits as if he has not dismissed from service. The Supreme Court has also held that infraction of Section 33(2)(b) has been made as a penal offence. Therefore, the said provision will not be considered as Mandatory and not directory. 6. In paragraph No.14 of the said judgment, the Supreme Court has held as follows: "Where an application is made under S.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 https://hcservices.ecourts.gov.in/hcservices/ 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 invoking S.33(2)(b) dismissing or discharging an employee brings an end of relationship of employer and employee from the date of his dismissal or discharge, but that order remains incomplete and remains in choate 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." 7. Earlier, the Supreme Court's view was that in case of infraction of Section 33(2), the remedy available to the workmen is only for filing a complaint under Section 33A of the I.D. Act. When such complaints are made, the Court must go into the question of legality of the punishment imposed by the employer. In no case, the concerned Court can order reinstatement solely on the ground of violation of Section 33 (2) (b) in not filing a petition for approval. Thus, the Jaipur Zilla Shahakari Bhoomi Vikas Bank Limited Vs. Ram Gopal Sharma case departed from the earlier line of judgments. Therefore, the workman is in advantageous position. It is not clear as to why the petitioner has come forward with the present writ petition challenging the order of termination solely on the ground of infraction of Section 32(2) (b) if they are sure about their factual foundation. 8. On notice from this Court, the Counsel for the Transport Corporation produced a letter written by the Special Deputy Commissioner, Chennai dated 6.5.2008 stating that when the petitioner Thavamani, Conductor was dismissed, there was no dispute relating to any permanent workers and there is no scope of filing any application before him. https://hcservices.ecourts.gov.in/hcservices/ 9. It must also to be noted that the matter is stated to be pending conciliation before a Conciliation Officer. There is no scope for filing any complaint under Section 33A of the I.D. Act. In such cases, when a complaint is made under Section 33 A, the Conciliation Officer shall take such complaint into account and mediate for the settlement of such industrial dispute. It is only in case when a dispute is pending before the adjudiction forum like the Tribunal Labour Court, those forums can go into the validity of the complaint and pass an award as it was a dispute referred for adjudication. Therefore, even if the employer had not filed any Approval Application, the petitioner could have made a complaint to the Conciliation Officer under Section 33A of the I.D. Act, but that will not bring any relief to the workmen as he cannot go into the merits of the complaint made by the workmen. 10. On the contrary, in the present case except showing there were some notices issued by the Conciliation Officer, the petitioners were not able to produce any tangible materials and to show that there is a conciliation pending between the parties. On the contrary, the letter of the Special Deputy Commissioner shows that there is no pending dispute before him. 11. From the counter affidavit dated 3.12.2007, nothing turns out to show that there is a conciliation still pending and the respondents have infracted the provisions of Section 33(2) of the ID Act. The very fact that in Jailpur Zila case (cited supra) the Constitution Bench had declared the law only to make the worker to avoid raising any fresh dispute in getting his case decided by a competent forum. It is surprising that the workmen should come forward to file a writ petition challenging the orders of dismissal by claiming infraction of 33(2)(b) of I.D. Act. Since parties are at variance with respect to the pendency of conciliation proceedings, the competent forum can only be the Labour Court as the Supreme Court has declared the law in favour of the workmen. 12. In such circumstances, it is open to the petitioner to file an appropriate petition before the Labour Court claiming wages for the period in which he was not given employment. While deciding such petitions, the Labour Court can always go into the question regarding the pendency of the conciliation proceedings and the employer's action in violating Section 33 (2)(b) by not seeking approval from the Conciliation Officer. Such a factual foundation is necessary before the declaration of relief in favour of the workmen. When the Supreme Court itself had stated that the infraction of Section 33(2), the workmen are entitled to get wages as if they are in employment. Hence, no remedy will be available under Article 226 of the Constitution of India in case https://hcservices.ecourts.gov.in/hcservices/ of disputed questions of fact 13. Mr.S.T.Varadarajulu, learned counsel appearing for the petitioners submitted that the writ remedy is also available since the respondent is a wholly owned Government Transport Corporation. The Writ Petitions are maintainable before this Court and they cannot be non-suited on the ground of alternative remedy. The factual aspect has to be found out in terms of evidence (both oral and documentary) and only in such circumstances, such a declaration can be granted. In the present case, the petitioner had not made the Conciliation Officer as a party and in the absence of the same and in the assertion made by the Transport Corporation, this Court is not inclined to entertain the writ petitions. 14. Further, whether the strike notice was validly given or not is a question of fact which cannot be gone into in a Writ Petition under Article 226 of the Constitution. The Supreme Court in more or less similar circumstance deals with such an issue in Essorpe Mills Limited vs. Presiding Officer, Labour Court and others, (2008) 7 Supreme Court Cases 594. The following passage found in para 22 of the judgment may be extracted below : "In the notice, it is stated that the strike will commence on or after 24.3.1991. Obviously. Six weeks' time before the date of strike was not given. In this case, the date of notice is 14.3.1991 and the proposed strike was on or after 24.3.1991. The inevitable conclusion is that the notice cannot be treated to be one under Section 22. Jaipur Zila case has no application if the notice given is not in accordance with law. If no notice is given to the employer, the effect of it is that he is not aware of the proceedings. Obviously, the conciliation proceedings must be one meeting the requirements of law. Here, no notice in terms of Section 22 of the Act was there." After holding that the strike notice was not in accordance with law, the Supreme Court set aside the judgment of this Court which had applied the Jaipur Zilla's case (cited supra) and granted relief. 15. It is open to the petitioners either to raise an industrial dispute under Section 2A(2) of the I.D. Act on the merits of their dismissal. In such disputes, they can always contend about violation of Section 33(2)(b). It is also open to them to file a petition under Section 33(2)(c) claiming wages for the period in which case also the Labour Court can incidentally https://hcservices.ecourts.gov.in/hcservices/ decide whether in the light of the materials, any relief can be given to them. 16. In view of the above, the Writ Petitions are dismissed. No costs. Consequently, connected Miscellaneous Petitions are closed. However, the findings rendered in these writ petitions are provisional and not a final conclusions on the issues raised by the workmen and they will not stand before the petitioner in establishing their case before the Labour Court. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar tsi To 1.The Joint Commissioner of Labour (Conciliation), Office of the Commissioner of Labour, Tenampet, Chennai-600 006. 2.The Managing Director, Metropolitan Transport Corporation Limited, Anna Salai, Pallavan Illam, Chennai-600 002. 3.The Joint Managing Director, Metropolitan Transport Corporation Limited, Anna Salai, Pallavan Illam, Chennai-600 002. 4.The General Manager, Metropolitan Transport Corporation Ltd., Pallavan Salai, Pallavan Illam, Chennai-2. +1cc to Mr.S.T.Varadarajulu,Advocate Sr 63440 +1cc to Mr.G.Munirathinam, Advocate Sr 63553 TS(CO) km/17.12. W.P.Nos.18367, 18368 of 2008, 544 to 550 of 2009, 8181 to 8196 of 2009, 16630 to 16633 of 2009 https://hcservices.ecourts.gov.in/hcservices/